Well it could be that I'm going crazy, but I seem to recall reading a case that dealt with this issue. As I remember it went like this:

The CO had a CPAF contract and included an "award fee" clause that stated (as FAR requires, See 16.405-2 and 406) "The award amount and the award-fee determination methodology are unilateral decisions made solely at the discretion of the Government; they are not subject to the Disputes clause." The contractor objected, filed claim, appealed CO decision, court determined:

Since the Award Fee plan in a CPAF contract is a specified part of the contract (i.e. if you do X at Y level you will receive Z dollars), the contractor must not be denied a remedy if they perform per the contract and the government does not award based on the terms of the award fee plan in the contract.

I can't seem to find the case in my files or in a few Internet searches. Anyone out there who has a better memory, better search skills, or an entertaining comment At any rate, I don't want to put the FAR language in my contract unless it's accurate.

Many thanks,

Jeff

By Charlie Dan on Thursday, May 23, 2002 - 09:05 am:

I think you're looking for Burnside-Ott Aviation Training Center v. John H. Dalton, Secretary of the Navy. It can be found at:

http://www.ll.georgetown.edu/Fed-Ct/Circuit/fed/opinions/96-1227.html

By Anonymous on Thursday, May 23, 2002 - 10:51 am:

Jeff, your memory of what the court said is not accurate. The FAR language was not nullified. You may have already have read the case. Others may not follow up and assume your statement reflects the result. The court explicitly stated:

 

We agree with the government that there is no ambiguity in the contract and that the FDO here had the authority to act unilaterally. Burnside-Ott cannot point to any part of the contract that requires the award fee to correspond directly with the performance rating. Indeed, the text of Clause H-21 unmistakably grants unilateral discretion to the government to determine the award fee. The choice of conversion method was left by contract to the FDO and should not be disturbed by the Board or by this court unless the CO's affirmance of the FDO's decision was arbitrary or capricious. There is no evidence of record to show that the CO acted arbitrarily or capriciously. Therefore, the decision of the Board is affirmed.

[Emphasis added]

I believe what was most notable about this case was that it dispelled an idea that an agency could exempt itself in whole or in part from CDA through contract language. The court did not accept the agency argument to "dismiss for want of jurisdiction, citing Clause H-21 of the contract and arguing that the effect of the clause is to deprive the Board of jurisdiction to hear the dispute" while leaving the unilateral nature of award fee standing except for agencies acting "arbitrarily or capriciously."

By joel hoffman on Thursday, May 23, 2002 - 12:17 pm:

Anonymous, I disagree with you. The previous FAR language was nullified by the decision. If you compare the 1996 FAR and todays version, both paragraphs referenced above included the language exempting the Government's determination from any Contractor recourse under the Disputes Clause. happy sails! joel

By Eric Ottinger on Thursday, May 23, 2002 - 12:22 pm:

Joel and Anon,

I am not sure that you are really disagreeing. The decision is still unilateral.

However, the FAR was revised to delete the language exempting the decision from CDA.

Eric

By joel hoffman on Thursday, May 23, 2002 - 12:23 pm:

oops, meant to say that the 1996 version of FAR (and 1997, 1998 and 1999 versions) included the nullified language. The 2000 FAR version removed the CDA exclusion language (probably by FAC 97-15 I didn't research the "FAR that far"). happy sails! joel

By joel hoffman on Thursday, May 23, 2002 - 12:28 pm:

Eric, you are correct. My comment referred to Anons statement that the FAR wasn't nullified. The FAR provision that the descision is unilateral is still okay, but the provision that the decision couldn't be disputed was nullified and subsequently removed from FAR. I wasn't very clear. happy sails! joel

By bob antonio on Thursday, May 23, 2002 - 12:41 pm:

This explains the basic issue and provides links.

http://www.wifcon.com/analfarcouncil.htm

By Jeff H. on Thursday, May 23, 2002 - 01:09 pm:

This is excellent! I was thinking of Burnside-Ott, and my memory of the case wasn't perfect. From reviewing the case and the good discussion here, I think I've got the issue down.

Bob, thanks for the link, sorry I missed it on my own.

Take care all.

Jeff

By 10:51 Anonymous on Thursday, May 23, 2002 - 01:35 pm:

I too should have been more clear. The issue was that the unilateral nature of the award fee decision was not nullified. The core of the decision was that contract terms, including FAR language, cannot be used to prevent recourse under CDA.

This seems to me to be a good example of a reasonable decision. No, government, you cannot immunize yourself from claims and CDA recourse. Yes, you can put unilateral and other perhaps distasteful terms into the contract and enforce them in a non arbitray and capricious way.