Advice and appeals

There is a time-honored rule in procurement that says vendors rely on the advice of their contracting officers at their own risk. It seems that not a month goes by without the continued viability of this rule being tested by a company and reaffirmed by a court or board of contract appeals. Last month, United Partition Systems Inc., a 16-year veteran of the General Services Administration's schedule contracts program, became the most recent test case.

In 2000, the Air Force awarded United Partition Systems a $108,404 task order under its schedule contract. A dispute later arose between the parties concerning the company's performance, which led to a termination of the order for reason of default. The Air Force termination letter informed the company that it could submit a claim pursuant to the contract's dispute clause.

The company subsequently filed a claim with the Air Force contracting officer. Not surprisingly, it was denied. The decision advised United Partition Systems that it could appeal to the Armed Services Board of Contract Appeals (ASBCA). With high hopes, the company did so.

Unfortunately, the contracting officer was a little confused. A termination dispute in which a vendor claims that it was not responsible for the performance problems that the government alleges goes to the GSA contracting officer, not the contracting officer of the ordering agency. Furthermore, if the vendor appeals the contracting officer's final decision, that appeal goes to the GSA Board of Contract Appeals, not ASBCA. Accordingly, the ASBCA concluded that it lacked jurisdiction and dismissed the company's appeal entirely.

The fact that United Partition Systems was simply following the direction of its contracting officer was of no importance.

The Air Force contracting officer perhaps can be forgiven for not fully understanding the rules governing disputes involving GSA schedule contracts. After all, the rules are not models of clarity.

The termination for default clause for GSA schedule contracts, however, has not been modified. Therefore, in the context of a GSA schedule contract, a termination dispute that involves a vendor's claim that the alleged performance problems were excusable still must be directed to the GSA contracting officer.

All of this is probably no great solace to United Partition Systems, which now must begin the dispute process anew before another GSA contracting officer. It could have been worse.

In the end, the fundamental rule that emerges from United Partition Systems' experience is no different from the rule that contractors — old and new — have learned the hard way for years: Although contracting officers often are excellent sources of information regarding complex rules and regulations, their advice should mark the beginning of a contractor's inquiry, not the end.

Aronie is an attorney with Fried, Frank, Harris, Shriver & Jacobson in Washington, D.C., and co-author of "Multiple Award Schedule Contracting." He can be reached at

FCW in Print

In the latest issue: Looking back on three decades of big stories in federal IT.


  • Anne Rung -- Commerce Department Photo

    Exit interview with Anne Rung

    The government's departing top acquisition official said she leaves behind a solid foundation on which to build more effective and efficient federal IT.

  • Charles Phalen

    Administration appoints first head of NBIB

    The National Background Investigations Bureau announced the appointment of its first director as the agency prepares to take over processing government background checks.

  • Sen. James Lankford (R-Okla.)

    Senator: Rigid hiring process pushes millennials from federal work

    Sen. James Lankford (R-Okla.) said agencies are missing out on younger workers because of the government's rigidity, particularly its protracted hiring process.

  • FCW @ 30 GPS

    FCW @ 30

    Since 1987, FCW has covered it all -- the major contracts, the disruptive technologies, the picayune scandals and the many, many people who make federal IT function. Here's a look back at six of the most significant stories.

  • Shutterstock image.

    A 'minibus' appropriations package could be in the cards

    A short-term funding bill is expected by Sept. 30 to keep the federal government operating through early December, but after that the options get more complicated.

  • Defense Secretary Ash Carter speaks at the TechCrunch Disrupt conference in San Francisco

    DOD launches new tech hub in Austin

    The DOD is opening a new Defense Innovation Unit Experimental office in Austin, Texas, while Congress debates legislation that could defund DIUx.

Reader comments

Please post your comments here. Comments are moderated, so they may not appear immediately after submitting. We will not post comments that we consider abusive or off-topic.

Please type the letters/numbers you see above

More from 1105 Public Sector Media Group