Ee * 7 Tice[1B Basics of Government. x YJ THE'NO-WAIVER" RULE x € GS | © nttosv/wwwjstor.org/stable/257552487se HISTOR: Search Results \\ [} LowSyllabus pot X \ 8 Property Lew-Propriets 3AdebI47ta6aSbc9ToW8a8atéad97dea23#page scan tab contents decide the waiver issue in cases nearly identical on theie facts. That these courts reached opposite conclusions bespeaks a need for clarification and res- olution of this issue at the appellate level Tn this article, chs author argues that common law principles of waiver and estoppel, as well as binding precedents related thereto, lead to the conclusion that there should not be, and probably should never have been, a no-waiver rule regarding regulatory and statutory benefits for government contractors. I is time to recognize thatthe king has no clothes. The cases in which 2 no- waiver rule was articulated could have heen decided largely with the sime result through the application of conventional principles of waiver and estop- pel. The existence of a no-waiver role eliminates consideration of pertinent factors by the tial courts, Efficiency and simplicity are, of course, the reward for employing black-and-white rules, such as the no-waiver rule, The benefit of efficiency is too high a price to pay when application of the rule Jeads to an outcome that defies common sense. In one jet fuel ease, that point was reached when the court characterized the no-waiver rule, if applied in the facts of the case, asthe equivalent of a “007 license to kill” ‘We should be aware that there are peculiarities in government contract Jaw and the government contract environment that lend some support to a no-waiver rule. Firs, there isthe issue of authority Ifthe contracting officers give up a benefit for the Government created by statute oF regulations, their actions may be negated through a defense of lack of authority. The no-waiver rule can be seen as the mirror image of the protection against forfeiture of benefits that the Government sometimes claims.’ Second, the no-waiver rule sometimes is grounded on the idea that there is a superior mind behind stat- utes and regulations that has decided what is best for all partes in all situa- tions. Both the contrietor and the contracting officer appear to flost this superior mind if they are permitted to agree to something different in their contract Third, the sheer volume of government contract laws and regula- tions makes it difficult for many contractors to know exactly what is due to them. Since waiver requires knowledge, it can be argued that itis unfair to impute knowledge of such a vast amount of information to the contractor. Last it could be argued that the contractor should not be put in the position —Z Bocause of the conflict of opinion at the trial level, the waiver issue was certified for inter-[1B Basics of Government. x YJ THE'NO-WAIVER" RULE x € GS | © nttosv/wwwjstor.org/stable/257552487se HISTOR: Search Results \\ [} LowSyllabus pot Burereqic=excel Although taken altogether, the foregoing, enumerated explanations of why a no-waiver rule is good do not justify its creation by a court. The rules of waiver, and related principles of estoppel, clearly indicate that governmental benefits of even the highest order ean be abandoned by the beneficiary unless some public policy expressed or implied in law or regulation prohibits it. In the end, government contractors inust be vigilant regarding the benefits given them by law and regulation. They can lose those benefits through waiver or inaction, and they cannot rely on the courts or the contracting officers to ensure that they keep the benefits TL TRADITIONAL PRINCIPLES OF WAIVER AND ESTOPPEL. ‘Waiver has been defined as the intentional relinquishment ofa known right or benefit.” Waiver invoives two main areas of inquiry. The first is waivabilty ‘A person can only waive a right or benefit that is his:' He cannot waive a statute or regulation whose enforcement involves the public good as opposed tw his private good. The second has to do with what a person does to effect waiver. This area of inquiry involves such facts assigning an agreement, filing to object, performing contracts, and making or receiving payments. These actions are evidence of intention, which is @ requisite clement of waiver A. Watvabilty ‘Turning first to waivability, che U.S. Supreme Court long ago ruled that “(al party may waive any provision either of a contractor ofa statue, intended for [its] benefic” Waivability even extends to benefits conferred by the U.S. Constitution. "* The Supreme Court has repeatedly held that there is a pre- sumption of waivability of statutory benefits, and has even recently pro- ‘nounced, “Rather than deeming waiver presumptively unavailable absent some sort of express enabling clause, we instead have adhered 10 the opposite pre- sumption.""" Notwithstanding the presumptive availability of waiver for vit- tally all benefits that a government ean confer on its citizens, there are two situations in which the presumption will be overcome. They are, frst, when 1 statute indicates that there shall be no waiver and, second, when it appears, to the court that a statute or regulation has a public policy aspect that would he contravened if waiver were permitted, 2% \ Property Low -Proprieis 3AdebI47ta6aSbc9ToW8a8atéad97dea23#page scan tab contents