Kelman: A really bad idea

It makes no sense to change the burden of proof for whether a fed has acted in good faith.

The SARA panel, authorized by the Services Acquisition Reform Act of 2003, will issue a final report and recommendations soon. In subsequent columns, I hope to discuss some of those recommendations. One proposal has received little attention, but it merits discussion right away so it can be discarded. That proposal centers on the burden of proof for establishing that agovernment employee has acted in good faith in cases involving contract litigation against the government. In contract law, there is a presumption that a civil servant acts in good faith in dealing with a contractor. A contractor must satisfy a high burden of proof to override that presumption. If a court can demonstrate bad faith, the party showing bad faith loses the lawsuit. In claims or other litigation involving a contract, if it can be determined that the government showed bad faith, the government loses, even if no one demonstrated that the government’s conduct was wrong.The panel’s proposal, which passed despite objections from three government representatives on the panel, would change the burden of proof for demonstrating the good faith of a government official to a “preponderance of the evidence.” The judges would need to decide whether the evidence favors good faith. Incidentally, the three government representatives who objected were Dave Drabkin, the General Services Administration’s deputy associate administrator for acquisition policy; Deidre Lee, deputy director of operations at the Federal Emergency Management Agency; and Tom Luedtke, NASA’s assistant administrator for procurement. The panel’s proposal has two problems. First, it would encourage more litigation from contractors who use the courts to try to get more money from the government. Litigation is bad for the kind of partnership that produces the best contracting results. Contractors have not requested this change. It is an initiative of the legal community. The proposal would also divert scarce government contracting and program management resources. When we have a shortage of contracting employees — as we do now — preparing for a trial appears to be a low priority for using limited human resources.Second, it would send a terrible signal to our already battered career civil servants. Many of them continue to serve, despite salaries that are lower than those they could earn in the private sector. Civil servants also endure mean-spirited disparagement from the media, self-styled watchdogs and, at times, the oversight community. We should all admire their dedication and their public spirit. Don’t they deserve more than being told they must prove in court that they have acted in good faith?Such a change would require legislation. Perhaps Congress can make it clear that this proposal should go nowhere.
Editor's note: This story was updated at 10:50 a.m. Nov. 27. Please go to Corrections & Clarifications to see what has changed.
















Kelman is professor of public management at Harvard University’s Kennedy School and former administrator of the Office of Federal Procurement Policy. He can be reached at steve_kelman@harvard.edu.
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