We've been asked if the President's order to build the wall by diverting military construction project funds violates the law. Obviously, there is a question of whether the President has violated the Constitution. But from a strictly procurement perspective, it is our opinion that the diversion may well be illegal. This means certain tried and true remedies are available to contractors where solicitations are canceled, awards are not made and contracts that have been awarded are canceled or terminated.
If a solicitation is canceled, it may be possible to attack the cancellation based on a bad faith argument. The President promised the wall would be built by funding from Mexico. In bad faith, he now diverts money appropriated for military projects to fund his wall.
If a contract award of an issued solicitation is canceled or not made, the same argument could apply. The reason the award was not made was the decision, made in bad faith, to divert funding to build the wall. The wall serves no legitimate military purpose. The policy behind it, if any, is to cover the failed promise Mexico would provide the funding.
If an awarded contract is canceled or terminated, the contractor would have a breach of contract claim again based on the exercise of bad faith and abuse of discretion. There is plenty of precedent supporting such a claim.
bill@spriggsconsultingservices.com bill@spriggslawgroup.com
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