Tag Archives: contracts

Government Contracts are Different from Contracts between Ordinary Parties

By:  Coleman Jackson, Attorney, CPA
March 10, 2016

Government Contracts are Different from Contracts between Ordinary Parties

Contracting with the United States Government is different from contracting with an ordinary party.  Government Contracts differ from normal contracts in a number of ways.  The U.S. government has the exclusive right to decide who the government will do business with.  In government procurement law, the term ‘government contract’ is defined as any agreement or modification thereof between any entity, individual or person and the U.S. Government for the purpose of providing goods or services.  This definition of government contracts covers parties contracting directly with the government and those supplying goods and services indirectly to the government; such as, subcontractors and sub-sub contractors.  Government contracts do not have to be in writing to be enforceable.

Most importantly, the terms and conditions applicable to a government contract do not have to be agreed to by the parties

Most importantly, the terms and conditions applicable to a government contract do not have to be agreed to by the parties.  In fact the contracting party may not even be aware of all the regulations, executive orders and government policies and rules that are applicable to their government contracts.   For example, Executive Order No. 11246, Sec. 202(1) mandates that every nonexempt government contract contain a clause under which the employer agrees not to discriminate in employment on the basis of race, color, religion, sex or national origin.  All nonexempt government contractors must comply with this Executive Order and others that require government contractors to affirmatively put in place policies and procedures to comply with affirmative action employment policies, maintain suitable compliance records, and make them available for audit and inspection by U.S. Department of Labor investigators.  The very first Executive Order concerning equal protection of all U.S. citizens in government procurement was enacted by President Franklin D. Roosevelt.  President Roosevelt prohibited discrimination by government contractors and all Presidents since him have followed his example with respect to government procurement.

Affirmative Action and equal employment policies in government procurement are only one example of how the government achieves social and economic national policies through the U.S. government’s procurement of goods and services.  The President and governmental agencies run the government by enacting executive orders and writing and enforcing regulations.  In 1952, the U.S. Supreme Court ruled that President Truman’s executive order seizing the steel mills were unlawful.  The basic rule established by the Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) is simple, if the executive acts pursuant to congressional authority, the executive action is lawful; and if the executive acts against congressional authority, as President Truman did in seizing the steel mills, the executive action is unlawful.  In Youngtown, Congress had expressly refused to authorize seizure of the steel mills.  The actual implementation of this rule can be extremely nuanced and complicated as to determining whether an executive order or administrative regulation is -with or without- congressional authority.

Contracting with the U.S. Government is different from contracting with ordinary parties.  Compliance with applicable governmental policies, rules and regulations are extremely important.  Ignorance of government regulations and executive orders can destroy your business because executive orders and regulations apply to government contracts even if the actual contract never mentions them.  Agency regulations and Executive Orders have the full force and effect of law if they do not conflict with an express Congressional statute.  Maryland Cas. Co. v. United States, 251 U.S. 342, 349 (1920).

 Government Contractor’s ignorance of the law is no valid excuse. 

You can follow our blog post by visiting our Taxation, Litigation & Immigration Law Firm’s Website at www.cjacksonlaw.com.

This government contracting law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel with respect to any specific contract issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 

VENDORS DOING BUSINESS WITH TEXAS AND HIRING UNDOCUMENTED WORKERS – BEWARE YOU MIGHT HAVE TO PAYBACK ALL PUBLIC SUBSIDIES PLUS INTEREST

By: Coleman Jackson, Attorney
August 27, 2015

VENDORS DOING BUSINESS WITH TEXAS AND HIRING UNDOCUMENTED WORKERS MIGHT HAVE TO PAYBACK ALL PUBLIC SUBSIDIES PLUS INTEREST

Texas Government Code §2264.051 stipulates that vendors doing business with any public agency, state or local taxing jurisdiction, or economic development corporation in Texas must certify in writing that the business, or a branch, division, or department of the business, does not and will not knowingly employ an undocumented worker.

The certification statement must also stipulate that if, after receiving a public subsidy, the business or a branch, division, or department of the business, is convicted of a violation under the Immigration and Nationality Laws of the United States, 8 U.S.C.A.  §1324a(f), the business will repay the amount of the public subsidy with interest, at the rate and according to the other terms provided by an agreement under Texas Government Code § 2264.053, not later than the 120th day after the date the public agency, state or local taxing jurisdiction, or economic development corporation notifies the business of the violation.  INA, 8 U.S.C.A. §1324a essentially deals with persons or entities that violate the U.S. immigration laws by hiring, or recruiting or referring for a fee for employment in the United States an undocumented person.  A person or entity charged with violations of 8 U.S. C.A. §1324a may establish that it has compiled in good faith with the requirements with respect to the hiring, recruiting, or referral for employment of an alien (illegal alien is the term used in the INA to refer to an undocumented person or a person who came to the U.S.A. without inspection or overstayed their visa) in the United States.  Anyway, If a person or entity charged with a violation under 8 U.S.C.A. §1324a, establishes an affirmative defense, a conviction could possibly be avoided, and the person or entity doing business with a Texas public agency, state or local taxing jurisdiction, or economic development corporation could probably avoid the penalty of repaying Texas all public subsidies received with interest under Tex. Gov’t Code §§2264.051-2264.101.

A public agency, local taxing jurisdiction, or economic development corporation, or the attorney general on behalf of the state or the state agency, may bring a civil action to recover any amount owed to the public agency, state or local taxing jurisdiction, or economic development corporation against any person or entity convicted of 8 U.S.C.A.  §1324a violations pursuant to Texas Government Code Section 2264.101.

Specifics regarding your company, workers, or government contracts should be discussed with legal counsel of your choice.  This overview is supplied for educational purposes, is only an overview, and do not create an attorney-client relationship with the Immigration & Tax Law Firm of:

COLEMAN JACKSON, PC
6060 North Central Expressway
Suite 443
Dallas, Texas 75206
Phone:  (214) 599-0431 English
Phone:  (214) 599-0432 Spanish
Website:  www.cjacksonlaw.com