Consider this for just a moment. What might occur when someone, someone who works in government procurement fails to follow the Federal Acquisition Regulation (FAR); then contrast that with what an employee must do when ordered by a supervisor or higher authority, yes someone well above them, to do something which is inconsistent with the FAR.

In one case (John Martino, B-262168, May 24, 1996), the failure to obtain market information before renewing a contract option resulted in the new price being considerably higher than then current market pricing. The failure to follow the FAR led the Government Accountability Office (GAO) to conclude that the agency followed proper procedures in determining Martino’s “debt” to the agency, concurring with an offset from the Civil Service Retirement fund.

“Given the wide disparity in prices between what the PCC paid and what it might have paid for the commodity in question, we conclude that the PCC had a rational basis for the finding it reached.”

In another case, the Merit System Protection Board ruled that the Whistleblower Protection Act
did not apply when an employee was instructed by a supervisor to compel a contractor to rehire a fired subcontractor.

Such a request violates a provision of the FAR, and the employee refused to carry out the order.

“Upon challenging the decision, MSPB ruled and the U.S. Court of Appeals for the Federal Circuit affirmed the “right to disobey” provision of the whistle blower law applies only when an employee is asked to violate federal law specifically.”

 The supervisor gave the employee a negative performance review and stripped his duties as a contracting officer (CO) for failure to comply with direction. The U.S. Court of Appeals for the Federal Circuit stated that the Whistleblower Protection language is only applicable when the direction is to violate a law (statute), and rules and regulations do not qualify as federal statutes.


Seriously consider: As a CO or someone acting on a CO’s behalf, it may be beneficial to get an opinion from “someone with authority” to reduce the risk of personal liability or adverse action due to unacceptable performance appraisal.

Until the next mile marker. Cheers!

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