ACQ 370 FUNDAMENTALS OF FEDERAL LAW 1 FOUNDATIONS

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ACQ 370 FUNDAMENTALS OF FEDERAL LAW 1

ACQ 370 FUNDAMENTALS OF FEDERAL LAW 1

FOUNDATIONS OF FEDERAL LAW 2

FOUNDATIONS OF FEDERAL LAW 2

Foundations of Federal Law • The Common Law - What is it? 3

Foundations of Federal Law • The Common Law - What is it? 3

Foundations of Federal Law The Common Law: • Originates from England: unwritten, based on

Foundations of Federal Law The Common Law: • Originates from England: unwritten, based on local custom • 1184: Unified “national” common law under Henry II • Courts of Law • All U. S. states use common law as foundation except Louisiana (civil law) • Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals. – Stare decisis: courts should generally abide by 4

Foundations of Federal Law • Statutory Law - What is it? 5

Foundations of Federal Law • Statutory Law - What is it? 5

Foundations of Federal Law • Every year, lawmakers in Congress get together to create

Foundations of Federal Law • Every year, lawmakers in Congress get together to create laws. • These are published in the Statutes At Large • Then the laws are codified in the United States Code (USC). • Various government agencies interpret their particular Code Title of USC, then they write the rules needed to enforce their laws in the Code of Federal Regulations (CFR). 6

Foundations of Federal Law The Constitution of the United States Legislative (Article One) •

Foundations of Federal Law The Constitution of the United States Legislative (Article One) • Statutes • Authorizes rule-making • Funding • GAO decisions and investigations Executive (Article Two) • Regulations for Implementation/ administration • Agency Decisions Judiciary (Article Three) • Case decisions-based on statutes and common law 7

Foundations of Federal Law • In the pre-course cases, was there any evidence that

Foundations of Federal Law • In the pre-course cases, was there any evidence that the Court relied upon case law? • When reviewing statutory language, how do the Courts interpret the intent or requirements of the statutes? 8

Foundations of Federal Law Fact v. Law: • Trial Judge can set aside jury

Foundations of Federal Law Fact v. Law: • Trial Judge can set aside jury verdict if judge finds that, as a matter of law, jury’s findings not supported by the evidentiary record. • Appellate Court usually defers to Trial Court’s factual findings unless, as a matter of law, not supported by the record. 9

Foundations of Federal Law Standards Of Proof Burden Of Proof 100% Certain Beyond a

Foundations of Federal Law Standards Of Proof Burden Of Proof 100% Certain Beyond a Reasonable Doubt Clear & Convincing Clearly Erroneous (appellate) 50% Preponderance (>50%) Substantial Evidence Probable Cause/Reasonable Suspicion Adequate Evidence 0% Certain Government bears the burden in criminal Cases Used in both civil and criminal Cases Party seeking relief bears the burden in civil cases. 10

COMMON LAW CONTRACT PRINCIPLES 11

COMMON LAW CONTRACT PRINCIPLES 11

Common Law Contract Principles Sovereign Immunity • a legal doctrine by which the sovereign

Common Law Contract Principles Sovereign Immunity • a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution. • Common law principle waived only by statute. • Scope of the waiver affects whethere is a “claim upon which relief can be granted”. 12

Common Law Contract Principles Law of Contracts Ø Elements of a Contract • Capacity

Common Law Contract Principles Law of Contracts Ø Elements of a Contract • Capacity to contract • Mutual assent or “meeting of the minds” • Consideration • Certainty of terms • Legal purpose • Form of contract meets legal requirements Ø Breach Ø Damages 13

Common Law Contract Princip • Can the Government enter into a verbal contract? •

Common Law Contract Princip • Can the Government enter into a verbal contract? • Will it be enforced? 14

Common Law Contract Principles Law of Equity • Unjust Enrichment • Concept applicable to

Common Law Contract Principles Law of Equity • Unjust Enrichment • Concept applicable to contract law: Implied-infact contract. 15

Common Law Contract Principles Law of Agency • Authority to Contract: -Individually on your

Common Law Contract Principles Law of Agency • Authority to Contract: -Individually on your own behalf (Principal) or - Through an agent 16

Authority to Contract Actual Authority • Express Agent has been expressly told to take

Authority to Contract Actual Authority • Express Agent has been expressly told to take action (written or oral) • Implied Reasonably necessary to carry out express directions Apparent Authority Principal’s words or conduct lead a reasonable person to conclude that the apparent agent’s actions were authorized General rule: the Principal is bound by the acts of the Agent 17

Authority to Contract Actual Authority • Express Agent has been expressly told to take

Authority to Contract Actual Authority • Express Agent has been expressly told to take action (written or oral) • Implied Reasonably necessary to carry out express directions Apparent Authority X Principal’s words or conduct lead a reasonable person to conclude that the apparent agent’s actions were authorized U. S. Government is not bound by the rule of apparent authority However, Government’s liability may be affected by rules of equitable estoppel, imputed knowledge, ratifications and waiver 18

Common Law Contract Principles Imputed Knowledge of Agent to Principal: • The nature of

Common Law Contract Principles Imputed Knowledge of Agent to Principal: • The nature of the relationship of the Parties creates the presumption that one would have informed the other of events. - E. g. , information known to a COR is imputed to the Contracting Officer. 19

Common Law Contract Principles Implied in Law Contract • Also called quasi-contract • Is

Common Law Contract Principles Implied in Law Contract • Also called quasi-contract • Is a “legal fiction” created by the Court for equitable purposes. • Used to impose a remedy when there has been “unjust enrichment” –money or other benefit. • Not subject to the Contract Disputes Act 20

Common Law Contract Principles Implied in Fact Contract • Distinguish from implied-in-law contracts. •

Common Law Contract Principles Implied in Fact Contract • Distinguish from implied-in-law contracts. • Agreement arises from non-verbal conduct, rather than by explicit words. • “Founded upon a meeting of minds, which, is inferred, as a fact, from conduct of the parties. “ (US Supreme Court, Baltimore & Ohio R. Co. v. U. S. , 1923). • Statute of Frauds is a defense to a claim of an Implied in Fact contract. 21

Common Law Contract Principles RULES OF CONTRACT INTERPRETATION 1. The contract will be read

Common Law Contract Principles RULES OF CONTRACT INTERPRETATION 1. The contract will be read as a whole. 2. Negotiations may be examined to explain, but not enlarge, the contract. 3. The contract language is presumed to express the intent of the parties. 4. Objective meaning of words is preferred over subjective. 5. Ordinary meaning is preferred over a technical meaning. 6. Technical meaning controls in a technical context. 7. A lawful result is preferred over an unlawful result. 8. A practical result is preferred over an absurd literal interpretation. 9. Specific terms control over general terms. 10. Typewritten matter controls over printed matter. 22

Common Law Contract Principles RULES OF CONTRACT INTERPRETATION (cont. ) 12. Specifications control over

Common Law Contract Principles RULES OF CONTRACT INTERPRETATION (cont. ) 12. Specifications control over drawings if in conflict. 13. Specifications and drawings read together. 14. Performance specifications control. 15. Design specifications (by govt. ) are warranted as correct. 16. Trade practice governs contract performance, BUT. . . 17. Plain contract language overrides trade usage. 18. Ambiguity: Is “uncertainty of meaning”; Is more than mere disagreement. 19. Contractor’s interpretation, if reasonable, controls, BUT. . . 20. If ambiguity is obvious, contractor must ask Contracting Officer for clarification AND… 21. Contracting Officer must clarify. 23

STATUTES/REGULATION S 24

STATUTES/REGULATION S 24

Statutes Tucker Act—Civil War legislation • Waiver of Federal sovereign immunity for money damage

Statutes Tucker Act—Civil War legislation • Waiver of Federal sovereign immunity for money damage claims against the U. S. • Contracts “implied in fact”- words • Contracts “implied in law, quasi contracts”- conduct • Basic jurisdictional statute for the US Court of Federal Claims • Reduced need for ‘private bills’ before Congress to resolve contractor disputes. 25

Statutes Administrative Procedures Act – 1946 • - Rulemaking and adjudication of Agencies. (EPA,

Statutes Administrative Procedures Act – 1946 • - Rulemaking and adjudication of Agencies. (EPA, FCC, SEC. etc. ) Competition in Contracting Act of 1984 (CICA) • • - Full and Open Competition - Statutory Basis for Negotiated Procurement - Procedural Requirements (FAR Part 6. 3) - Competition before CICA—formal advertising and 17 possible exceptions for 26 negotiations (D & Fs)

THE ADJUDICATION SYSTEM 27

THE ADJUDICATION SYSTEM 27

The Adjudication System United States Court of Federal Claims: • Congress established the Court

The Adjudication System United States Court of Federal Claims: • Congress established the Court in 1855 pursuant to the authority under Article One of the United States Constitution. • Has nationwide jurisdiction- all claims against the government except tort, equitable and admiralty claims. • Exclusive judicial forum for bid protest litigation as of 2001. • http: //www. uscfc. uscourts. gov/ Armed Services Board of Contract Appeal • Primary function is to hear and decide post-award contract disputes between government contractors and the DOD; NASA; CIA: and other agencies. • Not a US Court- a Board established under the Disputes Act. • http: //www. asbca. mil/ 28

The Adjudication System United States District Court: • Established by Congress to hear both

The Adjudication System United States District Court: • Established by Congress to hear both civil and criminal matters. Tort claims are filed here. United States Court of Appeals for the Federal Circuit: • Exclusive jurisdiction on appeals from Board of Contract Appeals and United States Court of Federal Claims. • Has nationwide jurisdiction in a variety of subject areas, including international trade, government contracts, patents, trademarks, certain money claims against the United States government 29

The Adjudication System Civilian Board of Contract Appeals: • Established by section 847 of

The Adjudication System Civilian Board of Contract Appeals: • Established by section 847 of the National Defense Authorization Act for Fiscal Year 2006 to hear and decide contract disputes between government contractors and executive agencies under the provisions of the Contract Disputes Act of 1978. • Does not have jurisdiction over DOD, NASA, TVA and Postal Service. Government Accountability Office: • An independent, nonpartisan agency that works for Congress. • Issues decisions and opinions, such as bid protest rulings and reports on agency rules. • Non-binding 30

Reminder Homework: Read and prepare to discuss the article “Who is Killing the Goose”

Reminder Homework: Read and prepare to discuss the article “Who is Killing the Goose” 31

Comments or Questions? 32

Comments or Questions? 32