Here are some of the things the authorities have to say. These citations against overthrowing the United States were in effect during 1984. |
| 64 Am Jur 2d &117 | Under a provision in a contract for the construction of public works or improvements designating a public architect, engineer, or other public officer as the person authorized to determine questions relating to the execution of the contract and stipulating that his determinations shall be final and conclusive, both parties to the contract - the building contractor and the public body with whom he contracts as well - are bound by the selected arbiter's determination of those matters which he is authorized to determine, except ... failure to exercise honest judgment. Such a provision virtually makes the architect or engineer the arbitrator ... |
| Foster Wheeler v. US, (1975) 513 F.2d 588 206 Ct Cl. 533 | Impossibility of performance includes absolute impossibility and impracticability because of extreme and unreasonable difficulty ... and Government assumed the risk of impossibility. ASBCA finding that performance was not impossible, to the extent that finding was based on matters of fact it was entitled to finality... but was a mixed question. |
| Mitchell Canneries v US, (1948) Ct. Cl. 77 F.Supp 498 | Findings of contracting officer were final not only in cases of mere "delay" but also in cases of failure to perform. Findings of fact are binding on both government and contractor. |
| US v. Digital Products Corp. C.A. Fla., (1980) 624 F.2d 690 | Factual disputes surrounding defense contracts must be resolved by the Armed Services Board of Contract Appeals. |
| Dynalectron v. US, (1975) Ct. Cl. 518 F.2d 594 | ... is a question of whether specifications require performance beyond the state of the art. |
| Sunrock v. US, (1952) D.C. Pa. 104 F.Supp 131 | Findings of fact made by contracting officer could not be set aside by court. |
| 10 USC 2310 b) | such a finding is final. |
| Contracts Dispute Act of 1978 PL 95-563 | ... not subject to review. |
| 48 CFR 33 | 6b) The contracting
officer shall issue a written decision on any Government
claim. 1) Claim means .. assertion by one of the contracting parties seeking ... interpretation of contract terms... |
| 64 Am Jur 2d &118 | It is universally recognized that the law will read into a stipulation in a contract for public work making a certificate, report, opinion, or decision of an engineer or architect conclusive on the parties, the proviso that his decision must have been made in good faith and his conduct free from fraud. If he fails to exercise his honest judgment, acts arbitrarily or fraudulently, or makes such gross mistakes as imply bad faith, his decision, report, certificate or opinion is not binding.. |
| Climatic v. US, (1950) 115 Ct. Cl. 520 88F Supp. 415 | authorized individuals superiors interfered in decisions required to be based on independent judgment |
| Urbana Data Systems v. US, (1983) 699 F.2d 1147 | United States is not bound by its agents acting beyond their authority and contrary to regulation. |
| Schmidt v. US, (1961) 145 Ct. Cl. 632 | refusal to comply with an unlawful order in not insubordination. |
| AFIT Contract Administration text | 5-8 Every officer acting on behalf of the Government does so through the delegation of specific authority. These delegations can ultimately be traced to the Constitution or to the statutes and laws enacted by Congress. |
| Campbell v. US, (1985)7 Ct Cl. 195 | no officer or agent can by his actions or conduct waive provisions of law. |
| Housing Corp. v. US, (1972) 468 F.2d 922, 199 Ct. Cl. 705 | Where the officials in question were the Director of Production and the Chief of Construction Services branch .. Neither was a contracting officer and ..were outside their authority. |
| Hawkins v. US, (1984) 1 Ct. Cl. 221 | absent such timely filed action, contracting officer's decision is final and conclusive and not subject to review by any forum. |
| Z.A.N. CO. v. US, (1984) 6 Ct. Cl. 298 | Finality attaches to conclusions of contracting officer. |
| Tapper and Assoc. v. US, 222 Ct. Cl. 34 | Contracting Officer concludes settlement ... acting in a quasi-judicial capacity. |
| Joseph Morton Inc. v. US, (1985) 757 F.2d 1273 C.A. Fed | Government was required to raise its counterclaims before a contracting officer before Government could assert them in Court. |
| McDonnell Douglas Corp. v. US, (1985) 757 F.2d 365 C.A. Fed. | Administrative board has no authority to act 'sua sponte' on Government claim. |
| 48 CFR 1.602 | -1(a) Contracting
Officers have the authority to ..administer.. and make
related determinations and findings. -2 ...responsible for ... ensuring compliance with the terms of the contract. |
| 48 CFR 42.301 | ...in accordance with this regulation, (FAR), the contract terms, and ...applicable regulations of the servicing Agency. |
| 48 CFR 1.4, Deviations from the FAR | 'Deviation' means ... a) issuance or use of a policy, procedure .. method or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the FAR. f) The issuance of policies or procedures that govern the contracting process or otherwise control contracting relationships that are not incorporated into agency acquisition regulations. |
| 48 CFR 201.403 | Deviations not permitted are (Contract Cost Principles) 48 CFR 31.2 |
| AFIT Contract Administration text | 6-21 Release of Procurement Information. .. caution must be exercised to prevent disclosure of information which could in some manner prejudice the Government's interest. (2) Requests from U.S. Government employees should be granted on a need-to-know basis. |
| AFCMDM 84-1 35-3(a)(6), 31 July 1975 | HQ AFCMD/PDX provides direction, guidance and leadership for detachment manufacturing engineering activities. |
| AFCMDM 84-1 35(c)1, 31 July 1975 | The manufacturing engineer is process oriented, the industrial engineer is systems oriented - the one evaluating operations, the other systems. |
| AFCMDM 84-1 35-4(f), 31 July 1975 | The manufacturing engineer ... will interface with a diversity of functions within the AFPRO and with the contractor. Because of this broad area of operation, the manufacturing engineer will report directly to the manufacturing operations division chief. |
| AFCMDM 84-1 36-2(b), 31 July 1975 | The involvement of the manufacturing engineer in the assessment activities listed in a above should be limited to those instances in which his unique orientation toward manufacturing processes can make a specific contribution to those activities. |
| AFCMDM 84-1 36-3(g)(2)(h) 31 July 1975 | Finally, the manufacturing engineer should follow up and monitor contractor actions and responses to those items communicated to the contractor. Problems unresolvable at the detachment level should be referred to AFCMD/PDX. |
| Civilian Personnel Position Description 0-38769-0, III-1, 15 September 1980 | This person independently devises his own methods and approaches to problem solving. |
| Civilian Personnel Position Description 0-38769-0 III-2, 15 September 1980 | Incumbent will use specialized experience/judgment in determining specific areas requiring Manufacturing Engineering attention. Incumbent uses engineering expertise and initiative to develop approaches, priorities and methods of reaching the assigned (project/program) objectives. |
| HQ AFSC Management Engineering Squadron, Memo dated October 1984 | The AFPRO Northrop Manufacturing Operations Division Chief's request to move the General Engineer(Manufacturing) from the Manufacturing Operations Division (PD) to the Manufacturing Assessment Branch (PDP) is denied. There shall be no change to the AFSC Organization for the Manufacturing Operations Division (PD). |
| Jesse Don Hickson III, Detachment 37, 1985 | I am the Detachment Engineer and I have always been independent in my working since accepting my competitive appointment in December 1980. The Law clearly requires my independence and does not authorize following orders nor permit anybody to make changes to my official engineering decisions. My decisions have always been based on my personal and independent judgment as required by the contracts and the laws and I have never surrendered. |
Here are some things the outlaws have to say. |
| AFPRO Northrop Supervisory Industrial Engineer, PDP Branch, 18 July 1985 | "Specifically, the first fact is as follows:" ... "regarding the contractor's response to Air Force Suggestion Program suggestion KIR-83-0071 from HQCMD/QA. I heard you say 'No response is required' (by the contractor)(under the terms of my contracts) and so the suggestion evaluation was not completed on 23 July 1984. |
| AFPRO Northrop Supervisory Industrial Engineer, PDP Branch, 18 July 1985 | "Specifically, the second fact is as follows:" ... Being the current Engineer in Power at this Detachment "you continued to refuse to provide" ... 'the AFPRO Northrop PDP Branch PD-2 MSI Tool Checklist document' ... "in support of your evaluations". The PDP PD-2 MSI OPR also requested this information. I heard you say 'No findings!' and the 'documentation (of compliance) was not required' on 25 August 1984. |
| AFPRO Northrop Supervisory Industrial Engineer, PDP Branch, 18 July 1985 | "Specifically, the third fact is as follows:" ... "On one occasion when I asked specific questions about the checklist" I heard you say 'I did not tell you there was not a problem!'. You thus acknowledged that problems existed .. but refused to provide the (checklist) documentation" (of compliance) stating 'the documentation was not required'" on 31 August 1984. |
| AFPRO Northrop Supervisory Industrial Engineer, PDP Branch, 18 July 1985 | "Specifically, the fourth fact is as follows:" ... The current Engineer in Power at this detachment is "undermining my authority" by refusing to report to the AFPRO Industrial Engineers about the status of Detachment Manufacturing Engineering Activities because of some 'need-to-know' criterion on 7 September 1984. |
| AFPRO Northrop Supervisory Industrial Engineer, PDP Branch, 18 July 1985 | "Specifically, the fifth fact is as follows:" ... "The detachment Engineer in Power has been "observed continually reading technical literature" on 4 September 1984. |
| AFPRO Northrop Supervisory Industrial Engineer, PDP Branch, 18 July 1985 | The authorized Engineer in Power "could result in damage to Government property, or may be detrimental to the interests of the Government, or may be injurious". |
| AFPRO Northrop Supervisory Industrial Engineer, PDP Branch, 12 October 1984 | Look everybody! I am the PDP Branch Chief and I have been here for only six months and already I supervise the Detachment Engineer located up there in the PD headblock! |
| AFPRO Northrop Supervisory Industrial Engineer, Manufacturing Operations Division (PD) Chief, 27 August 1985 | Our reasons "are stated in the five paragraphs following the words, 'Specifically, the facts are as follows:'" written by the PDP Branch Chief. (Our reasons are good in our opinion. Don't pay attention to the official HQ AFSC perspective because they disobeyed my direct orders to move the Manufacturing Engineer to my PDP Branch and are therefore insubordinate and defiant for refusing my request.) |