Contracting with the Federal Government – Construction Series Part 1

“If you put the federal government in charge of the Sahara Desert, in five years there’d be a shortage of sand.”  –Milton Friedman.

 

Photo by Gagan Cambow: https://www.pexels.com/photo/building-architecture-flag-usa-6237498/

The following construction blog series is a 4-part overview of federal claims and issues focusing on contracting with the federal government in general, and followed by an overview of the Miller Act, the Tucker Act, and the Contract Disputes Act.

There are a plethora of jokes, quotes, and quips regarding the ability of the federal government to contract and effectively administer contracts for the construction of public works projects.  When these projects encounter difficulties in completion or payments, there are few undertakings in the law more frustrating than litigating against the federal government.  After all, the doctrine of sovereign immunity reigns paramount and is a core tenant of any pleading authored or signed by a lawyer employed by the United States Department of Justice.  Sovereign immunity is defined as:

A judicial doctrine which precludes bringing suit against the government without its consent.  Founded in the ancient principle that “the King can do no wrong,” it bars holding the government or its political subdivisions liable for the torts of its officers or agents unless such immunity is expressly waived by statute or by necessary inference from legislative enactment.

Black’s Law Dictionary, Sixth Edition (1990).  Although one could argue the underlying principle is comical (a la Nebuchadnezzar II to King Henry VIII, a few in between, and a few after), the principle does protect the assets of all taxpayers generally and is necessary to maintain a functioning government.  Therefore, one must live and litigate within the constraints of existing federal laws waiving such immunity in limited circumstances, and those provisions that bring one into a contractual relationship with the government.

Contracting with the Government Generally

Those contractors brave enough to contract with the federal government must be familiar with the Federal Acquisition Regulations (“FARs”).  The FARs are the primary regulations utilized by all executive agencies in the acquisition of supplies and services with appropriated funds.  The FARs are found 48 CFR 1, including eight Subchapters (A – H) further divided into fifty-three Parts.  Many of the FARs are incorporated by reference into government acquisition contracts, and some are set out in their entirety in such contracts.  There are a large number of regulations to be evaluated and some of those provisions can conflict all raising potential traps for the ordinary contractor.  For example, some FARs can be considered the “law” and may be applicable even if they are not included or referenced in your contract.

Simply, this body of regulations and project specifications create an extensive set of obligations for the contractor in any given project.  It is prudent to have a good working knowledge of such regulations, or someone to lean on to help guide the process.  However, what happens if something still goes wrong such as a difficult or unresponsive contracting officer?  Experience indicates that it is best to seek assistance to protect your rights and your claims.  For example, disputes with the federal government normally require continued performance of the contract obligations and raising such disputes with the contracting officer in a timely manner.  Yes, the rules are written in the federal government’s favor.