Discrimination in Public Accommodations: Government Enforcement

When and Where to File a Complaint — Public Accommodations and Facilities

Federal law prohibits privately owned facilities that offer food, lodging, gasoline or entertainment to the public from discriminating on the basis of race, color, religion, or national origin. If you think that you have been discriminated against in using such a facility, you may file a complaint with the Civil Rights Division of the Department of Justice, or with the United States attorney in your area. You may also file suit in the U.S. district court.

In addition, the Americans with Disabilities Act prohibits discrimination on the basis of disability in a wide range of places of public accommodation, including facilities that offer lodging, food, entertainment, sales or rental services, health care and other professional services, or recreation.

There are also state laws that broadly prohibit discrimination on the bases of race, color, religion, national origin, and disability in places of public accommodation. To determine whether your state has such a law, you should contact your state or local human rights agency, or your state attorney general’s office.

Public facilities such as courthouses, jails, hospitals, parks, and other facilities owned and operated by state and local government entities cannot discriminate in their services because of race, color, religion, national origin, or disability. If you think a public facility has discriminated against you because of race, color, religion, or national origin, you may file suit in the U.S. district court or file a complaint with the nearest U.S. Attorney’s Office.

People with disabilities cannot be discriminated against or excluded from services, programs, or activities offered by state or local governments. All public transportation systems must be accessible to people with disabilities, regardless of whether the system receives federal financial assistance.

State and local governments must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless the government can establish that the requirements are necessary for the provision of the service, program, or activity. In addition, public facilities must ensure that individuals with disabilities are not excluded from services, programs, or activities because buildings are inaccessible.

State and local agencies that provide emergency telephone services must provide “direct access” to individuals who rely on telecommunication display devices (TTD’s pr TTY’s) for the deaf, or computer modems for telephone communication. Companies offering telephone services to the general public must offer telephone relay services to individuals who use TTY’s or similar devices.

Intrastate complaints should be filed with that state. Interstate complaints should be filed with the Federal Communications Commission.

Discrimination complaints about public facilities (other than Architectural Barriers Act complaints, see below) should be sent to:

  • the federal agency that provides funding to the facility subject to the complaint;
  • the federal agency designated to investigate complaints; or
  • the Department of Justice.

Complaints may always be filed with the Civil Rights Division of the Department of Justice, which will refer your complaint to the appropriate agency.

Complaints regarding new construction of, or alterations to buildings or facilities funded by the federal government and subject to the Architectural Barriers Act of 1968 should be sent to:

Architectural and Transportation Barriers Compliance Board
Office of Compliance and Enforcement
1331 F Street, NW, Suite 1000
Washington, DC 20004-1111
(202) 222-0800
(800) 872-2253
TTY: (202) 272-0082
TTY: (202) 993-2822
Fax: (202) 272-0081

The Disability Rights Section of the Civil Rights Division of the U.S. Department of Justice handles complaints of discrimination based on disability in places of public accommodation, including all hotels, restaurants, retail stores, theaters, health care facilities, convention centers, parks, and places of recreation. To file a complaint of discrimination based on disability, call (800) 514-0301 and send your complaint to:

U.S. Department of Justice
Civil Rights Division
Disability Rights Section
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 307-2227
TTY: (800) 514-0383
Fax: (202) 307-1198

If the Disability Rights Section believes that there is a pattern or practice of discrimination, or the complaint raises an issue of general public importance, it may attempt to negotiate a settlement of the matter, or bring an action in U.S. district court. Any such action would be taken on behalf of the United States. You also have the option of filing your own lawsuit in U.S. district court.

Introduction to Federal Voting Rights Laws

The Voting Rights Act, adopted initially in 1965 and extended in 1970, 1975, and 1982, is generally considered the most successful piece of civil rights legislation ever adopted by the United States Congress. The Act codifies and effectuates the 15th Amendment’s permanent guarantee that, throughout the nation, no person shall be denied the right to vote on account of race or color. In addition, the Act contains several special provisions that impose even more stringent requirements in certain jurisdictions throughout the country.

Adopted at a time when African Americans were substantially disfranchised in many Southern states, the Act employed measures to restore the right to vote that intruded in matters previously reserved to the individual states. Section 4 ended the use of literacy requirements for voting in six Southern states (Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia) and in many counties of North Carolina, where voter registration or turnout in the 1964 presidential election was less than 50 percent of the voting-age population. Under the terms of Section 5 of the Act, no voting changes were legally enforceable in these jurisdictions until approved either by a three-judge court in the District of Columbia or by the Attorney General of the United States. Other sections authorized the Attorney General to appoint federal voting examiners who could be sent into covered jurisdictions to ensure that legally qualified persons were free to register for federal, state, and local elections, or to assign federal observers to oversee the conduct of elections.

Congress determined that such a far-reaching statute only in response to compelling evidence of continuing interference with attempts by African American citizens to exercise their right to vote. As the Supreme Court put it in its 1966 decision upholding the constitutionality of the Act:

Congress had found that case-by-case litigation was inadequate to combat wide-spread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims. South Carolina v. Katzenbach, 383 U.S. 301, 327-28 (1966).

At the time the Act was first adopted, only one-third of all African Americans of voting age were on the registration rolls in the specially covered states, while two-thirds of eligible whites were registered. Now black voter registration rates are approaching parity with that of whites in many areas, and Hispanic voters in jurisdictions added to the list of those specially covered by the Act in 1975 are not far behind. Enforcement of the Act has also increased the opportunity of black and Latino voters to elect representatives of their choice by providing a vehicle for challenging discriminatory election methods such as at-large elections, racially gerrymandered districting plans, or runoff requirements that may dilute minority voting strength. Virtually excluded from all public offices in the South in 1965, black and Hispanic voters are now substantially represented in the state legislatures and local governing bodies throughout the region.

Rights of Inmates

Even the most chronic or hardened inmates have basic rights that are protected by the U.S. Constitution. If you are facing incarceration, you should know your rights. If you have a family member or friend who is in prison or jail, you should know what their rights are, as well.

    • Pre-trial detainees (those citizens who are too poor to afford bail and who are therefore held pending trial) have the right to be housed in humane facilities. In addition, pre-trial detainees cannot be “punished” or treated as guilty while they await trial.
    • Inmates have the right to be free, under the Eighth Amendment, from inhuman conditions because those conditions constitute “cruel and unusual” punishment. The term “cruel and unusual” was not defined at the time the Amendment was passed, but it was noted by the Supreme Court in 1848 that such punishments would include “drawing and quartering, embowelling alive, beheading, public dissecting, and burning alive,” among other things. Today, many of these punishments may seem antiquated, but the basic scope of the protection remains the same. Any punishment that can be considered inhumane treatment or that violates the basic concept of a person’s dignity may be found to be cruel and unusual.

Example: In 1995, a federal court in Massachusetts found that inmates’ constitutional rights were violated when they were held in a 150-year-old prison that was infested with vermin, fire hazards, and a lack of toilets.

    • Inmates have the right to be free from sexual crimes, including sexual harassment.

Example: A federal court in the District of Columbia found prison officials liable for the systematic sexual harassment, rape, sodomy, assault, and other abuses of female inmates by prison staff members. In addition, the court found that the prison facilities were dilapidated, that there was a lack of proper medical care available, and that the female inmates were provided with inferior programs as compared to male inmates within the same system.

    • Inmates have the right to complain about prison conditions and voice their concerns about the treatment they receive. They also have a right of access to the courts to air these complaints.

Example: A federal court in Iowa recently awarded a prisoner over $7,000 in damages after it was found that he was placed in solitary segregation for one year and then transferred to a different facility where his life was in danger just because he complained about prison conditions and filed a lawsuit challenging the conditions of his confinement.

    • Disabled prisoners are entitled to assert their rights under the Americans with Disabilities Act to ensure that they are allowed access to prison programs or facilities that they are qualified and able to participate in.
    • Inmates are entitled to medical care and attention as needed to treat both short-term conditions and long-term illnesses. The medical care provided must be “adequate.”
    • Inmates who need mental health care are entitled to receive that treatment in a manner that is appropriate under the circumstances. The treatment must also be “adequate.”
    • Inmates retain only those First Amendment rights, such as freedom of speech, which are not inconsistent with their status as inmates and which are in keeping with the legitimate objectives of the penal corrections system, such as preservation of order, discipline, and security. In this regard, prison officials are entitled to open mail directed to inmates to ensure that it does not contain any illegal items or weapons, but may not censor portions of correspondence which they find merely inflammatory or rude.

Note: Inmates do not have a right to have face-to-face interviews with news reporters or media representatives. The rationale for this limitation is that the media are not entitled to have access to inmates that members of the general public would not be able to have.

    • Inmates have the right to be free from racial segregation in prisons, except where necessary for preserving discipline and prison security.
    • Inmates do not have a reasonable expectation of privacy in their prison cells and are not protected from “shakedowns,” or searches of their cells to look for weapons, drugs, or other contraband.
    • Inmates are entitled, under the Due Process Clause of the Constitution, to be free from unauthorized and intentional deprivation of their personal property by prison officials.
    • The Supreme Court has held that inmates who are the subject of disciplinary investigations or proceedings are entitled to advance written notice of the claimed violation and a written statement of the facts, evidence relied upon, and the reason for the action taken. The inmate is also entitled to call witnesses and present documentary evidence if allowing him to do so would not risk order, discipline, and security. In that regard, inmates are rarely allowed to confront and cross-examine adverse witnesses in an internal disciplinary proceeding.

Note: In most cases, an inmate is not entitled to representation by counsel in a disciplinary proceeding.

  • Inmates are entitled to a hearing if they are to be moved to a mental health facility. However, an inmate is not always entitled to a hearing if he or she is being moved between two similar facilities.
  • A mentally ill inmate is not entitled to a full-blown hearing before the government may force him or her to take anti-psychotic drugs against his or her will. It is sufficient if there is an administrative hearing before independent medical professionals.

In 1996, Congress passed the Prison Litigation Reform Act (PLRA), which has been seen by many critics as unfairly limiting inmate access to the federal court system. The PLRA contains five major provisions:

    1. Prisoners must exhaust internal prison grievance procedures before they file suit in federal court.
    2. Prisoners must pay their own court filing fees, either in one payment or in a series of monthly installments.
    3. Courts have the right to dismiss any prisoner’s lawsuit which they find to be either “frivolous,” “malicious” or stating an improper claim. Each time a court makes this determination, the case can be thrown out of court and the prisoner can have a “strike” issued against them. Once the inmate receives three “strikes,” they can no longer file another lawsuit unless they pay the entire court filing fee up front.

Note: If the inmate is in risk of immediate and serious physical injury, the three strike rule may be waived.

  1. Prisoners cannot file a claim for mental or emotional injury unless they can show that they also suffered a physical injury.
  2. Prisoners risk losing credit for good time if a judge decides that a lawsuit was filed for the purpose of harassment, that the inmate lied, or that the inmate presented false information.

Government Prosecution of Criminal Civil Rights Violations Q&A

Q. What are the differences between a civil and a criminal civil rights violation?

A. A criminal violation requires the use or threat of force. Other distinctions between criminal and civil cases brought by the government are:

CRIMINAL CIVIL
Who is charged: Accused person Usually an organization
Standard of proof: Beyond a reasonable doubt Preponderance of evidence
Fact finder: Jury Judge
Victim: Identified individuals Individuals and/or representatives of a group or class
Remedy sought: Prison, fine, restitution, community service Correct policies and practices, relief for individuals
Govt’s right to appeal: Very limited Yes

Criminal cases are investigated and prosecuted differently from civil cases. More and stronger evidence is needed to obtain a criminal conviction than to win a civil suit. Should the defendant be acquitted, the government has no right of appeal. A federal criminal conviction also requires a unanimous decision by 12 jurors (or by a judge only if the defendant chooses not to have a jury). Civil cases are usually heard by a judge, but occasionally a jury will decide the case. Both criminal and civil cases can be resolved without a trial where both sides agree and with the concurrence of the judge; this is done by a plea agreement in a criminal case and by a consent decree in a civil suit. In criminal cases, judges must use the Federal Sentencing Guidelines in determining the defendant’s punishment, whereas judges in civil suits may or may not adopt remedies as recommended by the government when it wins.

Q. If there is no violence or threat of violence, whom should I contact?

A. If no violence is involved, complaints should be submitted in writing to the Civil Rights Division, where it will be forwarded to the appropriate Section for review. The Division’s mailing address is:

Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, D.C. 20530

Q. What do I do when my civil rights have been violated, and can I make a complaint on behalf of someone else? Must it be in writing?

A. Individuals may report possible violations on their own or on behalf of others if they have sufficient first-hand information about the incident. The information provided should include names of the victim(s), any witnesses, and the perpetrators (if known), a description of the events, and whether any physical injuries or physical damage were incurred. Complaints in writing are preferred, but there may be circumstances when a telephone complaint is appropriate (especially if there is an immediate danger). The “blue pages” of your local telephone book should have the phone numbers and addresses for the agencies shown below.

Hate crimes:

  • Local FBI field office or
  • Local police department

Health care access interference:

  • Local FBI field office [phone threats]
  • Local ATF (Treasury) [bombing or arson]

Involuntary servitude or migrant worker exploitation:

  • Local FBI field office or
  • Trafficking in Persons and Worker Exploitation Task Force — 1-888-428-7581 (weekdays 9 AM – 5 PM EST) — [available in 100 languages during work hours and English, Spanish, Russian, and Mandarin after hours]

Housing interference:

  • Local FBI field office and/or
  • Local HUD office

Official misconduct:

  • Local FBI field office

Religious interference or property damage:

  • Local FBI field office

If you are unable to locate the appropriate office listed above, please send the complaint in writing directly to the Criminal Section at the following address:

Criminal Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66018
Washington, D.C. 20035-6018

Q. Is there a cost involved in making a complaint?

A. There is NO FEE required to file a complaint.

Q. What help can I receive if I am a victim whose civil rights have been violated?

A. During the course of a federal criminal civil rights investigation, the victim may be eligible to receive compensation and other assistance provided through various local government and private agencies. Each state has eligibility requirements for receiving compensation, usually requiring that the victim promptly report the incident and cooperate with the police and prosecutors. In general, victims may be compensated for medical and mental health treatment, funerals, lost wages, and crime scene clean-up.

These programs have been established in every state and receive federal grants from a fund consisting of fines paid by convicted defendants nationwide.

Q. Can a victim receive monetary compensation as the result of a criminal case?

A. If a defendant is convicted as the result of a federal criminal civil rights prosecution, the government will ask the court to order restitution to be paid to the victim where it is permitted by law and appropriate to the facts of the case.

Q. Will the federal government represent me in a lawsuit against the defendant?

A. The United States government cannot represent a victim in a civil suit arising out of a criminal civil rights violation. Victims may contact a private attorney to pursue a civil action even if there has been a federal prosecution for the same incident.

Q. Do all federal criminal civil rights violations require racial, religious, or ethnic hatred? If not, what does “color of law” mean?

A. Official misconduct and slavery cases (such as police beatings and migrant worker exploitation) do NOT require that the law enforcement officer or exploiter have acted out of hatred for the victim because of the victim’s race, national origin, color, or religion. However, there are several laws that do require that the unlawful acts be based upon such a discriminatory motivation. These include housing and religious interference or acts intended to prevent an individual from enjoying certain federal rights (voting, employment, use of public facilities or access to health care [gender]).

“Color of law” is a legal term used in official misconduct cases. It means that the law enforcement officer acted while abusing the authority given to him or her by reason of his or her employment as a public official.

Terminations For Convenience And Creedence Clearwater Revival: “Bad Moon Rising”

The U.S. won’t be able to avoid a crippling debt crisis as long as Congress refuses to include defense spending . . . in the mix of program cuts to reduce federal spending, the co-chairman of the presidential debt commission said Tuesday.   Army Times, March 8, 2011, available here

Terminations for the Government’s convenience developed as a tool to avoid enormous procurements upon completion of a war effort.  Because public policy counseled against proceeding with wartime contracts after an end to [Civil War] hostilities the government, under certain circumstances, began to terminate contracts and settle with the contractor for partial performance.  

Krygoski Constr. Co. v. United States, 94 F.3d 1537 (Fed. Cir. 1996)

It now is generally accepted that the federal budget must be reduced drastically, although just how drastically and where is still a matter for debate.  But public policy already has “counseled against proceeding” with certain procurements, and the process of terminating increasing numbers of contracts for the convenience of the government already may have begun in earnest, as indicated by the following developments:

  • On January 13, 2011, the Commandant of the Marine Corps recommended cancellation of the Marine Corps Expeditionary Fighting Vehicle (“EFV”) because its costs had become “too onerous.” He did so in the face of the outspoken opposition of many senior Marine generals who believed that without the EFV the Marines would “have to begin abandoning the [amphibious] mission that has long been at the core of their identity.”
  • On February 4, 2011, the White House web site boasted that it has reduced contract spending from an annual 12% increase between 2000 and 2008, to a FY 2010 reduction to “$535 billion versus $550 billion in the prior year.” To accomplish this feat, agencies have, among other things, “ended unnecessary or unaffordable contracts,including contracts for weapons systems, information technology, financial management, operations and maintenance, transportation and fuel.”  (emphasis in original). But the White House cautions that “[t]here is still much to be done to make sure every contracting dollar is well spent.”

This posting offers a brief review of the history and principles of the government’s right to terminate for convenience, including two recent decisions that illustrate just how minimal courts and Boards of Contract Appeals view the limits that exist on the Government’s authority to exercise that right.

The Government’s termination right is unilateral; it is not “balanced by a comparable right or advantage to the contractor.”

As the Federal Circuit explained in Krygoski, the concept of termination for convenience first appeared at the end of the Civil War. Krygoski Constr. Co. v. United States, 94 F.3d 1537, 1541 (Fed. Cir. 1996) (citations omitted).  It since has evolved into a powerful and mandatory contractual provision that gives the government the right to terminate a contract “in whole or . . . in part . . . [without cause] if . . . termination is in the Government’s interest.”  FAR 52.249-2 Termination for Convenience of the Government (Fixed Price) (May 2004).  The clause limits contractor recovery to reasonable costs of preparing the termination settlement proposal, costs actually incurred in performance of the contract work, plus a reasonable profit on those costs, thereby relieving the government of the obligation of paying anticipatory profits (i.e., breach damages) on the work that, but for the termination, the contractor would have performed.  See Dairy Sales Corp. v. United States, 219 Ct. Cl. 431, 593 F.2d 1002 (1979). Moreover, if the government can show that the contractor would have incurred a loss on a fixed price contract had it been completed, then (i) profit will not be allowed even on the work performed and (ii) the costs of performance recovered will be reduced in an amount proportionate to the projected loss. FAR 49.203(a); Systems & Computer Info., Inc., ASBCA No. 18458, 78-1 BCA ¶ 12,946.  These provisions give the government a broad and indeed unique right not “balanced by a comparable right or advantage to the contractor.”  District of Columbia v. OFREGO, 700 A.2d 185, 199 (D.C. 1997), citing John Cibinic, Jr., & Ralph C. Nash, Jr., Administration Of Government Contracts, 1073-1075 (3d ed. 1995).

The Government’s right to terminate for convenience is extremely difficult to overturn.

The government’s right to terminate a contract for convenience generally has been viewed as virtually bullet-proof.  For many years the contractor was required to present “well nigh irrefragable proof” of bad faith or abuse of discretion on the part of the contracting officer to justify a finding of breach.  Kalvar Corp. v. United States, 211 Ct. Cl. 192, 543 F.2d 1298 (1976), cert. denied, 434 U.S. 830 (1977). Then, for a brief period, it was believed that the government must show some change in circumstances between contract award and termination to justify exercise of its right or risk a determination that its termination was undertaken in bad faith.  Torncello v. United States, 231 Ct. Cl. 20, 681 F.2d 756 (1982). But the Federal Circuit severely limited Torncello in 1996 by ruling in Krygoski that Torncello’s changed circumstances doctrine could no longer apply in light of the Competition in Contracting Act, which “permits a lenient convenience termination standard.” For example, a contracting officer may discover that the specifications “inadequately describe the contract work” and “may therefore need to terminate [the] contract for the Government’s convenience to further full and open competition.” The court did note that “the Government’s authority to invoke a termination for convenience has . . . retained limits,” i.e., the government can not act in bad faith by, for example, entering into a contract with no intention of performing it or terminating a contract “simply to acquire a better bargain from another source.” Krygoski, 94 F.3d at 1541,1543.  More recent cases have established that bad faith must be proved by “clear and convincing” evidence, including a showing that the contracting officer was motivated by malice towards the contractor, which can be demonstrated by showing, among other things, “a specific intent to injure” or a “conspiracy . . . to get rid of” the contractor.  Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1241 (Fed. Cir. 2002) (citations omitted). The bar to overturning a T for C, plainly, is extraordinarily high.

The Government can terminate for convenience even if it has prior knowledge of facts indicating that it might want to terminate the contract for convenience in the future. 

In McHugh v. DLT Solutions, Inc., 618 F.3d 1375 (Fed. Cir. 2010), the CAFC reviewed and reversed a decision of the Armed Services Board of Contract Appeals (“ASBCA”) holding that (i) the government had breached a “non-substitution clause” stating that the government agreed not to replace the software it was purchasing “for a period of one . . . year” after the contract expires or is terminated” so that (ii) the government’s termination of the contract for convenience was a breach of contract which together made the government liable for “expectation damages.” After the contractor delivered the software, the procuring agency realized that its platform was inadequate to support the software and the agency with approval responsibility refused to approve its use.  The procuring agency continued to use its existing software, with upgrades, and terminated the contract for convenience of the government.  In reversing the Board’s holding, the Federal Circuit noted that the Board had “specifically found that [the agency] terminated the contract because its platform was inadequate and it could not obtain approval of the oversight agency, and held that “in light of . . . changed circumstances . . . the government was justified in utilizing the termination for convenience clause in terminating the contract . . . .” But the Court took special care to emphasize that use of the clause was justified “even if the agency had prior knowledge that it might not be successful in deploying the contracted for software,” citing Caldwell v. Santmyer, Inc. v. Glickman, 55 F.3d. 1578, 1583 (Fed. Cir. 1995) (Court refused to overturn a termination for convenience where the government has awarded the contract in good faith but, “at the same time, has knowledge of facts supposedly putting it on notice that, at some future date, it may be appropriate to terminate the contract for convenience”);McHugh, 618 F.3d at 1378.

However, the Government may not terminate simply to get a better price for performing needed work.

In Sigal Constr. Corp. v. Gen. Servs. Admin., CBCA, No. 508, 10-1 BCA ¶ 34,442 (May 13, 2010), the solicitation required a lump sum bid price for base contract work and fixed unit prices for certain restoration work items, the latter accompanied by estimated quantities “for the purpose of estimating offers.” The contractor’s post-award survey of  the quantities for the restoration work revealed that actual quantities for certain of the bid units were substantially in excess of the estimated quantities for those units. Several months after learning how much the actual quantities exceeded the estimated quantities in the solicitation, the GSA requested and received a lower unit price quote from another contractor to perform the work on a number of the affected bid units and suspended the contractor’s work on those units.  The contractor submitted a certified claim for breach damages, including lost profits for itself and its subcontractors.  Id. at 169,969.  The Contracting Officer denied the claim, arguing that the work in question was not part of the contract specifications in the first place and, in any event, GSA had authority to reduce the scope of work either under the Changes or Termination for Convenience clause.  The Board rejected GSA’s interpretation of the specifications and found the agency had committed a breach of contract, stating in part:

One of the few limitations on the Government’s right to terminate for convenience is that the Government may not terminate simply to get a better price for performing needed work.

Id. at 169,971.

The Government’s actual understanding of its requirements at time of award and termination are key facts in determining the propriety of a termination for convenience.

Sigal Construction and McHugh illustrate the narrow contours of the fact patterns that will support a successful challenge to a T for C:

  1. A termination likely will not be overturned merely because the contractor shows the government should have known it might later terminate the contract for convenience.
  2. But – a termination for convenience can be overturned if the contractor can show the government acted in bad faith because it awarded the contract with no intention of performing it.
  3. And – a termination for convenience can be overturned on the ground of bad faith if the contractor can show that, at the time of termination, the government understood the work was still required, but terminated solely to obtain a better price from another contractor.

Conclusion

Against the foregoing background, contractors may wish to take the following steps to protect themselves from unwarranted terminations for convenience:

  • When responding to solicitations, make reasonable efforts to assure that the specifications accurately describe the government’s requirements.
  • When the government reduces the scope of work of your contract, take all practicable steps to confirm that the government’s reasons for doing so reflect its present understanding of its actual requirements, and that the reduction does not reflect an effort to obtain a lower price from another source.

While these steps will not ensure protection, they certainly will reduce the risks.