Forum Article  |  2017-2018

Does Government Contracting Have a Remedies Problem? A Response to Eric M. Singer, Competitive Public Contracts

by Steven W. Feldman

In his provocative article, Competitive Public Contracts, Eric M. Singer claims that deficient contractor performance is inherent in government contracting. Singer asserts that, “fundamentally,” public purchasing has a “contract-remedies problem”—the absence of both any “credible threat” and any “effective contract remedy to deter or correct [contractor] misbehavior.” Unlike private buyers, who have plausible threats to motivate contractors to perform properly, governments are said to “often” labor under intrinsic and extrinsic limitations that undermine remedial alternatives. Consequently, Singer argues that governments (especially state and local agencies) have no “effective contract remedy” to induce improved contractor performance. Among these “ineffective” remedies, according to Singer, are terminations for default and past performance assessments of contractors.

This Response proceeds as follows: Part I disputes Singer’s charge that termination for default fails as a contractor control mechanism. Part II disagrees with Singer’s descriptive claim that agencies “underutilize[]” even “useful” past performance assessments. He contends, without empirical support, that government actors “frequently elect not to advertise” contractor performance failures for fears of both generating bid protests from the slighted firm and impugning the integrity of the procurement officer that awarded the earlier contract. Part III asserts that, besides raising efficiency issues, CDS is not legally workable because it conflicts with the principles of default terminations and contract options. Rather than being inherently problematic, current remedies in government contracting reflect the reality that “[t]he Government wields enormous powers in its contractual relations.”

2 Nev. L.J. Forum 13 (2017).