Essay Question #1(90 points)

1.I. M. Newbie is a new ACO for the Department of Agriculture, (Department of Forestry), who has been with the government for just over one year. The PCO, Good Old Geezer, has over 30 years of federal contracting experience and does not hesitate to "advise" Newbie.For years, Geezer has had a close personal friendship with Bull Dozer, a career COTR whose responsibility is to work with the inspector in determining contractual compliance by the contractor.Bull Dozer, during the morning coffee break, brags to Newbie, that he had earned his pay already that day by directing the contractor (Trudy Trees) to do work not covered by the contract; further, this contractor (Trudy Trees)is so nave (because she graduated from Cal Poly SLO)that Dozer was certain that the contractor would not complain. Trudy's contract is a FFP non-competitive contract awarded on 1 January 2020 with the DOA.The relevant specification of the contract reads as follows:

"An acceptable seedling suitable for transplanting" must measure at least 3 inches from root to end of stem and can be packed 50 to a pallet and must be delivered in strict conformance to the delivery schedule, which is expressly incorporated herein., so as tobe ready for transplanting."

Dozer requires Trees to deliver seedlings that are at least 6 inches from root to end of stem and rejects all shipments that do not conform to his interpretation.

1.1.(10 points) Newbie approaches Dozer and asks him why he is rejecting all timely deliveries of seedlings because they do not measure at least 6 inches. He responds that "based upon his experience, a very high percentage of seedlings that were accepted by the government that were less than 6 inches in height die upon transplanting, which defeats the whole purpose of the delivery of the seedlings in the first place.

1.1.1.What alternatives are available for Newbie?

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1.1.2.Which alternative would you pick and why?

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1.1.3.What additional factors would cause you to select a different alternative?

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1.2.(30 points) Assuming that Newbie confronts Dozer about his action and Dozer's very forthright reply is as follows:

"I work for the Department of Forestryand it is my job and ethical responsibility to assure that the government receives "best value" for every dollar spent.The people drafting the contract are idiots in that they do not know the realities of what constitutes a tree seedling ready to be transplanted.My sense of duty to the government requires me to reject seedlings less than 6 inches in height as they almost certainly die, and, by the way, your boss the PCO (Geezer), has for years agreed with my interpretation of what is an "acceptable seedling suitable for transplanting"".

1.2.1.What legal/contract management principles are inherent in this part of the hypothetical?

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1.2.2.What are the probable legal/contract management outcomes based upon those legal/contract management principles?

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1.2.3.What alternatives are available for Newbie?

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1.2.4.Which alternative would you pick and why?

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1.2.5.How should Newbie handle Dozer's statement rationalizing why he is doing what he is doing?

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1.2.6.Does it matter that Dozer ethically believes that he is doing the right thing which is in the government's best interest? Why/why not?

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1.2.7.What additional factors would cause you to select a different alternative?

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1.2.8.Discuss the significance/insignificance of PCO Geezer agreeing with Dozer's interpretation and contract management actions.Does such action raise any additional legal/contract management issues?

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1.3.(10 points) Newbie subsequently learns that Dozer is rejecting deliveries of the seedlings not only if they fail to measure 6 inches but also if they are NOT individually potted again stating that individual potting is necessary if the seedlings are to survive the transplanting process.

1.3.1.Identify and discuss all legal/contract management theories/principles and the ramifications thereof based upon this new information.

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1.3.2.What alternatives are available for Newbie?

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1.3.3.Which alternative would you pick and why?

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1.3.4.What additional factors would cause you to select a different alternative?

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1.4.(20 points) Trudy Trees does file a REA with Newbie based upon the wrongful rejection of the seedlings which do measure at least 3 inches high and are packed 50 to a pallet. The remedy Trudy seeks is an equitable adjustment of $1M for additional costs, which she submits to Newbie.

1.4.1.Identify and discuss all legal/contract management theories/principles that Trudy should argue in support of her REA.

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1.5.(10 points)Newbie forward the REA to Geezer, who rejects it. As a result, Trudy files a claim with Geezer as the PCO on this DOA contract.The claim seeks $1M in additional costs due to the wrongful rejection of the timely delivery of seedlings that measured at least 3 inches from root to end of stem and were packed 50 to a pallet.Geezer issues a final written decision rejecting the claim and Trudy timely appeals to the CBCA. Geezer's final written decision states two reasons why Trudy's claim was denied: (1) itwas certified in accordance with the requirements of the TCoPD statute (formerly known as TINA) and that (2) contractor failed to deliver in strict conformance to the contractual requirements.

1.5.1.Is Geezer correct that the claim could be rejected for failure to be certified in accordance with the TCoPD (TINA).Why/why not?

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1.5.2.Is Geezer correct that the claim could be rejected for failure to deliver in strict conformance to the contractual requirements. Why/why not?

1.6 (10 points) Critique the sufficiency of Trudy's claim identifying all readily apparent deficiencies? Is there additional information that you would you like to know relevant to whether her claim is justiciable?

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2.Essay Question #2(10 points) List all the critical thinking steps (and alternatives based upon those steps) in determining whether an ambiguity exists and what is necessary for a contractor request for equitable adjustment is based upon an alleged ambiguity to succeed. You may do it as a flow chart, if preferable.Also, does it make if the request for equitable adjustment is in the form of a bid protest or a contract claim - why/why not?

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