CON 216-Contract Law Intro Flashcards
Identify the fundamentals of the legal process and how
it applies to contract formation and administration.
The Legislative branch makes the laws and authorizes the expenditure of funds necessary to run the Government.
The Executive Branch implements the laws and carries out the day-to-day operations of the Government.
The Judicial Branch interprets the Constitution and the laws of the United States.
Identify the major sources of procurement law.
The U.S. Constitution;
Statutes passed by Congress;
Executive Orders issued by the President;
Judicial decisions rendered by the Federal Court System;
Administrative decisions issued by bodies such as Boards of Contract Appeals and the Comptroller General.
State laws do not apply to Federal contracts; and
Regulations provide specific guidance on how the law or program is to be implemented (FAR/CFR Regs).
Identify the required elements for a legally binding contract.
A contract is a promise that the law will recognize and remedy if broken;
Both parties must have the capacity to understand and appreciate the terms of the contract;
Parties must “mutually assent” to a contract when an offer is accepted;
Consideration is the name given to that “value” given by each party;
The law will not recognize a contract that is for something that one cannot lawfully do;
To be enforceable, the contract terms must be sufficiently clear; and
In the form permitted by law, written, oral, and implied through the conduct of the parties.
Compare and contrast the types of authority used in
public and private contracting.
Sovereignty which provides immunity to the Federal Government from lawsuits is waived by certain statutes.
Promissory estoppel prevents a party who has misled someone through words or actions from denying responsibility for those representations.
Statutes and regulations greatly limit the latitude that Contracting Officers and prospective contractors may exercise in negotiating a legally binding agreement.
Statutes and regulations greatly limit the latitude that Contracting Officers and prospective contractors may exercise in negotiating a legally binding agreement.
Limited authority is used in Federal Government contracts, ie, the Contracting Officer’s Warrant which specifies the limits of authority granted.
Apparent authority is not recognized in Federal Government contracting.
The Government Contracting Officer’s responsibilities extend beyond merely representing and protecting the interest of the Federal Government. The Contracting Officer also must ensure that contractors receive impartial, fair and equitable treatment.
Where specifically in the U. S. Constitution is the
Government granted the right to contract?
Article I, Section 8: Gives Congress the power to
form contracts
Why does the U. S. Government have the
right to do business? Who gave it that right?
We…….the people gave the Government the right
to contract on behalf of the United States of America.
Why is it that a citizen CANNOT sue the U. S.
Government without permission?
SOVEREIGN POWER: The supreme and absolute power
by which any independent state is governed; the supreme political authority; the power of self-government; the inter-national independence of a state. [West’s Law]
What are the 5 Essential Contract Elements?
- Competent parties – 1. Capacity, 2. Competence & 3. Authority.
- Mutual Assent – 1. Binding offer, 2. Valid Acceptance & 3. Meeting of the Minds.
- Consideration – Must be Mutual, no piggy-backing of previous contracts, can be a legal-detriment.
- Lawful Purpose –Illegality of purpose, severability clause & funding.
- Certainty of Terms –Price, Delivery schedule & Quantity must be certain, Statute of Frauds controls when it needs to be written.
What are the two types of contracts?
Bilateral Contract: (Two Party Agreement)
Unilateral Contract: (One Party Agreement)
WHAT IS A CONTRACT?
An agreement between two or more parties
that creates in each party a duty to do or not
do something and a right to performance of the
other’s duty or a remedy for the breach of the
other’s duty.
Can state laws control federal contracts?
No
What are the 5 ways to get into a Federal Court?
1.State or Fed. vs. State lawsuits.
2.U.S. Constitutional claims, ie EEO, EPA.
3.Statutory right to a federal review.
4.Diversity – citizen of one state suing
a citizen of another state where the
issue exceeds $75,000.
5.Lawsuits against the Sovereign,
ie a claim by a contractor against the
United States Army.
What 3 fundamentals make up The Legal Analysis “stool?”
- Theory
- Research Sources
- Jurisdiction
Name the branch of Government that creates the laws and is prescribed by what part of the Constitution?
Congress (House & Senate) or the Legislative Branch is prescribed by Article 1 of the Constitution.
Name the branch of Government that executes the laws and is prescribed by what part of the Constitution?
The President or the Executive Branch is prescribed by Article 2 of the Constitution.
