John M
Posted 05 April 2010 - 11:05 AM
QUERY: Recovery Act requires inclusion of BAA related provisions
FAR 52.225-23 (over $7.44M) or FAR 52.225-21 (under $7.44M).
Assume Government fails to make an appropriate choice and
includes both provisions in contract. Contractor uses certain
foreign goods after reading FAR 52.225-23 in the contract since
manufactured goods are from a designated country. However, the
contract is under $7.44M and that provision should have never
been in contract. Gov't now insists on compliance with FAR
52.225-21. Does contractor have a claim based on his reliance on
FAR 52.225-23?
here_2_help
Posted 05 April 2010 - 01:00 PM
| John M, on Apr 5
2010, 10:05 AM, said:
Does contractor have a claim based on
his reliance on FAR 52.225-23? |
Hi John,
You're asking a very technical, legal question, which is never a
good idea on a public forum such as WIFCON, despite the
collective wisdom to be found here.
Here's a link to a general discussion on BAA in ARRA
contracting. The article includes links to other related
articles. It's a blog run by top-notch Government contracting
lawyers. If you want a top-notch answer, you may want to
consider emailing or calling the attorney(s) who run the blog.
http://www.governmentcontractslawblog.com/2010/03/articles/baa-and-taa/six-questions-to-ask-in-figuring-out-whether-the-recovery-act-buy-american-requirement-applies-to-you/
Hope this helps.
John M
Posted 05 April 2010 - 01:12 PM
Thanks for the link.
Vern Edwards
Posted 05 April 2010 - 03:25 PM
John M, on Apr 5
2010, 10:05 AM, said:
QUERY: Recovery Act requires inclusion of BAA related
provisions FAR 52.225-23 (over $7.44M) or FAR 52.225-21
(under $7.44M). Assume Government fails to make an
appropriate choice and includes both provisions in
contract. Contractor uses certain foreign goods after
reading FAR 52.225-23 in the contract since manufactured
goods are from a designated country. However, the contract
is under $7.44M and that provision should have never been
in contract. Gov't now insists on compliance with FAR
52.225-21. Does contractor have a claim based on his
reliance on FAR 52.225-23? |
I doubt that the contractor has a leg to
stand on. Contractors are expected to know what the procurement
regulations require. That is a very old principle in government
contract law. See G.L. Christian & Assocs. v. United States, 320
F.2d 345 (Ct. Cl. 1963):
| Like other
individuals who deal with the Federal Government (see,
e.g., Federal Crop Insurance Corp. v. Merrill, 332 U.S.
380, 68 S.Ct. 1, 92 L.Ed. 10 (1947)), potential
contractors can validly be bound to discover the published
directives telling them the limits and the scope of the
agreements the Government can make. |
I have read the clause prescriptions in
FAR 25.1102 and they seem clear. The contractor knew or should
have known which clause properly applied. It has no excuse.
Besides, the inclusion of both clauses was a patent ambiguity
and the contractor should have inquired before signing the
contract. I'd say that unless there is more information that we
don't know about, the contractor does not have a valid claim.
I assume, of course, that the contractor will seek the advice of
a lawyer. But as CO I would deny any claim based upon the
contractor's reliance on the wrong clause. Of course, as CO I
would not have included both clauses. |
