Contractors Sometimes Stretch Their Deals
Contractors usually don't turn down government requests for their services, even if those requests are for work that falls slightly outside an agreement, said Claude P. Goddard, a government contracts attorney at Wickwire Gavin PC in McLean. Until the CACI case, there has not been a negative reaction to such practices, he said.
"What I have seen is kind of a wink and a nod by GSA, sort of turning a blind eye," Goddard said. "So you'll see all sorts of things being ordered that you wouldn't think would fall within the scope of the products or services of the actual schedule that the company holds."
Jacob B. Pankowski, a government contracting lawyer with Nixon Peabody LLP, said: "I don't know of any cases where a contractor has rejected an order on the basis that it's not within the scope of their government-wide order -- nor would one expect them to. The gist of this threatened action [against CACI] is to require government contractors to become the policemen of government contracting officials' conduct."
Pankowski defended the practice of allowing an agency to use an existing contract to order goods and services. He said it streamlines a process that would otherwise take months or years. "They find one of these vehicles, but it doesn't quite fit, they'll say 'I'm gonna order it anyway. It's close enough,' " Pankowski said.
Danielle Brian, executive director for the Project on Government Oversight, a District watchdog group, said government agencies should not be allowed to ask companies to take work outside the scope of their contracts. She said being forced to rewrite a contract or issue a new one, is "more work for the contracting officer. But I think it should be."
But Brian and other critics said that for the system to work, contractors also must be told they will be held accountable if the work they are doing is not covered by a contract.
"You're telling the contractor: 'It's very simple, don't do things that are pretty clearly outside the scope of your contract authority without making it clear to the government that the contract has to be changed,' " said Daniel J. Guttman, a fellow at the Center for the Study of American Government at Johns Hopkins University. "The assumption is that the government is capable of knowing what's going on, where in fact those in the contracting business know that that is too often is not the case."
The Defense Department report says that contracting officers in Iraq sometimes relied on the companies they hired determine whether they "could or could not comply with the requirements under the GSA schedule."
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