Given:
The contracting officer has the obligation to seek out expert advice but decisions rendered on contract matters must be his or her own. If it can be shown that the contracting officer was coerced into making a decision not his or her own, then the courts may overturn the decision.

Where is it written? (other than in FAR 15 which addresses the SSA decision).

ji20874  Posted on Monday, July 07, 2003 - 01:21 pm:  

It isn't written in the FAR -- but it is written in a number of court decisions and board of contract appeals opinions, such as when a contracting officer terminates a contract but the court or board holds that the termination is invalid (or the default is converted into convenience) because the contracting officer did not independently decide that termination was warranted.

Anonymous  Posted on Monday, July 07, 2003 - 03:25 pm:

Thanks for the info. Can anyone give a recent citation that specifically addresses the issue?

Stan M  Posted on Tuesday, July 08, 2003 - 09:20 am:

This is not a recent case but Nuclear Research Corporation vs. U.S., USCoFC (March 19, 1987) 6 FPD pp34 specifically discusses the issue of an independent CO decision in a termination for default.

Anonymous  Posted on Tuesday, July 08, 2003 - 09:27 am:

Thanks. I'll check it out.

Vern Edwards  Posted on Tuesday, July 08, 2003 - 10:05 am

This question usually comes up in connection with terminations for default.

In Administration of Government Contracts, 3d ed., by Cibinic and Nash, the authors say: "A decision by a contracting officer who follows the command direction of a superior without making a personal and independent judgment on the merits of a contractor's claim will not be a valid final decision under the Disputes clause."

As authority, the authors cite John A. Johnson Contracting Corp. v. United States, 132 Ct.Cl. 645, a 1955 decision of the old Court of Claims. However, it is not simple and clear cut. See, e.g., PLB Grain Storage Corp. v. Glickman, 113 F.3d 1257 (Federal Circuit, 1999, unpublished):

"Although the REACT committee instructed the contracting officer to terminate the contract, the contracting officer reviewed, agreed with, and made revisions to the termination order before its execution. This evidence supports the AGBCA's determination that the contracting officer was the final decision-maker and that he exercised independent, personal judgment. In a similar situation, the AGBCA has previously held that because the contracting officer 'read [the termination document] in detail, consulted with others within the agency, and agreed with the decision before signing it' the decision was that of the contracting officer even though he 'was not the primary decision maker and had little or no role in actually preparing the decision.' Gibson & Bearden, Co-Trustees in Dissolution of Delta Prods. Co., AGBCA No. 88-139-1, 93-2 BCA 25,615 (1992). We agree that such actions are sufficient to satisfy the requirement of a decision by the contracting officer to terminate and conclude that the termination in this case was legally effective."

In McDonald Douglas Corp. v U.S., 35 Fed. Cl. 358 (1996), the Court of Federal Claims said:

"Procurement officials must use judgment in deciding whether to terminate a contract for default; they cannot act as 'automatons.' [Sol O. Schlesinger v. U.S.], 182 Ct.Cl. at 581, 390 F.2d 702. If the contracting officer were 'improperly influenced by ... anyone else to terminate the contract for default rather than to exercise his own independent judgment in the light of the factors set out in the regulations, it would represent an abdication rather than an exercise of his discretion.'"

However, in McDonald Douglas Corp. v. U.S., the Federal Circuit overruled the Court of Federal Claims' decision, saying of the Schlesinger precedent:

"The illegality in Schlesinger stemmed from the Navy's reliance on contractor default as a pretext to terminate its relationship with the contractor, independent of the state of actual performance under the contract. The court characterized Schlesinger's performance shortcomings as merely a 'technical default' or 'bare default,' id. at 707, 708, and emphasized the Navy's total failure to consider the level of performance once it found a means for terminating by default. See, e.g., id. at 708 ('[T]he Navy acted as if it had no option but to terminate for default ... once the mere fact of non-delivery was found.'). In Schlesinger, it was improper for the Navy to terminate the contractor for default due solely to pressure from a congressional oversight committee because this ground for termination was totally unrelated to contract performance."

So, the decision can actually be made by others as long as the contracting officer who signs the decision has considered the facts and agrees with the decision.

edwardo  Posted on Wednesday, July 09, 2003 - 09:57 pm: