Transcript Rex non potest pecarre!

Fundamental Legal Principles
Affecting Government
Contracting
Sean Hannaway
Chief, Airborne/Space Warning and Sensors Division
Office of the Staff Judge Advocate
Electronic Systems Center Hanscom AFB
What this session is not about
• The Federal Acquisition Regulation (FAR)
• Contract Law
• Procedures
Not the road – the terrain
Format
• Discuss legal principle or area of law
• Explore how these legal principles are reflected
in government procurement
• Focus on the Why?
Sovereign Immunity
Rex non potest pecarre!
What is it?
• The doctrine from English common law that no
governmental body can be sued unless it gives permission
• Permission is typically in the form of a statutory waiver of
immunity
• “Men must turn square corners when they deal with the
government.”
– Oliver W. Holmes, Rock Island, Ark. & La. R.R. v. United States
(1920)
Primary Statutory Waivers in
Government Contracts
• Tucker Act – 1887 - 28 U.S.C. § 1491
– Jurisdiction for the Court of Claims
– Monetary Claims
– An express or implied-in-fact contract
• Contract Disputes Act (CDA) of 1978, 41 U.S.C. §§ 601-613
– Help induce resolution of more disputes by negotiation prior to
litigation;
– Equalize the bargaining power of the parties when a dispute exists;
– Provide alternate forums suitable to handle the different types of
disputes; and
– Insure fair and equitable treatment to contractors and Government
agencies.
How are sovereign immunity principles
reflected in government contracting?
• Disputes
– Process
– Recovery
• Authority
• Power to terminate
• Nearly everything!
Separation of Powers
Key Provisions and Principles
• The United States Government has inherent power to contract
– United States v. Maurice (1823)
• This power is shared between the Executive and Legislative Branches
• Constitution Article I
– Section 8
• The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts
and provide for the common defense and general welfare of the United States
• To raise and support armies,
• To provide and maintain a navy;
– Section 9 No money shall be drawn from the treasury, but in consequence of
appropriations made by law;
• Obligations enforced through Anti-Deficiency Act 31 USC §1341(a)
• Constitution Article II
– Section 1 The executive power shall be vested in a President of the United States of
America
– Section 2. The President shall be commander in chief of the Army and Navy of the
United States, and of the militia of the several states, when called into the actual
service of the United States;
Authorization
President’s
Budget
• General
• Specific
• Annual
Appropriation
Obligation
How is separation of powers reflected
in government contracting?
• CICA
• The bid protest regime
• Socio-economic programs
• Congressional reporting requirements
• New Starts?
Due Process
and
Administrative Law
What is it?
• Administrative law encompasses laws and
legal principles governing the administration
and regulation of government agencies
– Rulemaking
– Adjudication (decision making)
– Enforcement/execution
• Explosive growth in the late 20th Century
• Administrative Procedures Act (1946)
– 5 USC §500 et seq.
What’s the focus?
•
•
•
•
Public participation and information
The decision making process
The record, the record, the record
Judicial Review
– "arbitrary and capricious, an abuse of discretion,
or otherwise not in accordance with the law.“
• 5 USC §706
How administrative law principles
reflected in government contracting?
• The FAR System!
• Judicial involvement in bid protests
• Documentation requirements (e.g.)
– D & F’s
– Contract Award decisions
– Termination and Claims decisions
• The CO’s “independent” role
So what?
• If you know why you do something you know
whether you should
• If you know why you do something you will
know how to do it best
• Pay attention to the terrain!
Questions?