Common use of Good Neighbor Authority Clause in Contracts

Good Neighbor Authority. As we discussed in the last issue of Legal Briefs for the Timber Industry, the 2014 Farm Xxxx (P.L. 113-79) authorized the Secretary of Agriculture (as well as the Secretary of the Interior) to enter into so-called Good Neighbor Agreements (GNA) with state governors. More specifically, § 8206 of P.L. 113-79, as supplemented by P.L. 113-76, authorizes the Secretary, via cooperative agreement or contract, as appropriate, to enter into a good neighbor agreement whereunder the State shall perform watershed restoration and protection services on National Forest System lands. The agreement may also (a) authorize the State to serve as the agent for the Forest Service in providing all services necessary to facilitate the performance of watershed restoration and protection services, and (b) permit the services to be performed to be conducted with subcontracts utilizing State contract procedures, i.e., with State timber sale procedures. The statute specifically provides that subsections (d) and (g) of Section 14 of the National Forest Management Act of 1976 (NFMA), i.e., 16 U.S.C. § 472a (d) and (g), relating to advertising sales of federal timber and marking the timber to be cut, do not apply to services to be performed by the State under the cooperative agreement or contract. Notably it does not, however, exempt Good Neighbor Agreements from other sections of the NFMA and its implementing regulations. That said, a State’s performing work on federal land that is normally done by the federal government (usually by awarding timber sale contracts) is, to say the least, unusual. Indeed, because, under such an arrangement, the State is being asked to perform what logically and historically is, and in substantial respects remains, a federal function, the Forest Service’s simply turning over such a project for the State to run with is an open invitation to litigation. Additionally, in those instances where the State is not merely a cooperator/collaborator with the Forest Service, but rather its full-blown agent, the State will stand squarely in the Forest Service’s shoes. Because it is hard to see how the Forest Service can, except as specifically provided for by statute or regulation, shed responsibilities and requirements imposed by statute/regulation, as the Forest Service’s agent, at least some of those responsibilities and requirements will fall on the State. This would almost certainly include the requirement for any dispute under the GNA timber sale contract (or at least that portion dealing with the sale of National Forest timber) be handled pursuant the Contract Disputes Act. 41 U.S.C. § 7101, et seq. Furthermore, the State’s being an agent of the Federal government would also increase the likelihood that the sawtimber volume from National Forest lands in the GNA contract needs to be used to calculate shares within the U.S. Small Business timber sale set-aside program. Under GNA, the Forest Service, on the one hand, must see that things that are still required of it by federal statute and regulation are done and cannot allow the State to usurp federal law. That would violate the second paragraph of Article VI of the Constitution – the Supremacy Clause, which, among other things, has been held to mean that whenever the federal government is directly involved in a commercial transaction, federal law will apply. For example, a State GNA timber sale contract under which the State purports to have the authority to preclude a contractor who fails to comply with the GNA contract from being awarded Federal contracts for two years would be unconstitutional – it violates the Supremacy Clause. Such a provision tramples on the extensive rules and procedures outlined in 36 C.F.R. § 223.136, et seq. with regard to the debarment and suspension of a citizen from contracting with the federal government, which is governed by federal law. In sum, we reiterate that in implementing Good Neighbor Authority, the Forest Service and the States need to think through the many twists and turns associated with it. If that does not occur, the program will likely go the way of other interesting programs aimed at better management of the National Forests. To date, the evidence indicates that not enough thought has gone into the implementation of Good Neighbor Authority, which is fraught with the potential to ignore statutory requirements and/or to violate the Supremacy Clause of the Constitution. Government Accountability Office Announces Proposed Rule Amending Bid Protest Requirements

Good Neighbor Authority. As we discussed in the last issue of Legal Briefs for the Timber Industry, the 2014 Farm Xxxx Bill (P.L. 113-79) authorized the Secretary of Agriculture (as well as the Secretary of the Interior) to enter into so-called Good Neighbor Agreements (GNA) with state governors. More specifically, § 8206 of P.L. 113-79, as supplemented by P.L. 113-76, authorizes the Secretary, via cooperative agreement or contract, as appropriate, to enter into a good neighbor agreement whereunder the State shall perform watershed restoration and protection services on National Forest System lands. The agreement may also (a) authorize the State to serve as the agent for the Forest Service in providing all services necessary to facilitate the performance of watershed restoration and protection services, and (b) permit the services to be performed to be conducted with subcontracts utilizing State contract procedures, i.e., with State timber sale procedures. The statute specifically provides that subsections (d) and (g) of Section 14 of the National Forest Management Act of 1976 (NFMA), i.e., 16 U.S.C. § 472a (d) and (g), relating to advertising sales of federal timber and marking the timber to be cut, do not apply to services to be performed by the State under the cooperative agreement or contract. Notably it does not, however, exempt Good Neighbor Agreements from other sections of the NFMA and its implementing regulations. That said, a State’s performing work on federal land that is normally done by the federal government (usually by awarding timber sale contracts) is, to say the least, unusual. Indeed, because, under such an arrangement, the State is being asked to perform what logically and historically is, and in substantial respects remains, a federal function, the Forest Service’s simply turning over such a project for the State to run with is an open invitation to litigation. Additionally, in those instances where the State is not merely a cooperator/collaborator with the Forest Service, but rather its full-blown agent, the State will stand squarely in the Forest Service’s shoes. Because it is hard to see how the Forest Service can, except as specifically provided for by statute or regulation, shed responsibilities and requirements imposed by statute/regulation, as the Forest Service’s agent, at least some of those responsibilities and requirements will fall on the State. This would almost certainly include the requirement for any dispute under the GNA timber sale contract (or at least that portion dealing with the sale of National Forest timber) be handled pursuant the Contract Disputes Act. 41 U.S.C. § 7101, et seq. Furthermore, the State’s being an agent of the Federal government would also increase the likelihood that the sawtimber volume from National Forest lands in the GNA contract needs to be used to calculate shares within the U.S. Small Business timber sale set-aside program. Under GNA, the Forest Service, on the one hand, must see that things that are still required of it by federal statute and regulation are done and cannot allow the State to usurp federal law. That would violate the second paragraph of Article VI of the Constitution – the Supremacy Clause, which, among other things, has been held to mean that whenever the federal government is directly involved in a commercial transaction, federal law will apply. For example, a State GNA timber sale contract under which the State purports to have the authority to preclude a contractor who fails to comply with the GNA contract from being awarded Federal contracts for two years would be unconstitutional – it violates the Supremacy Clause. Such a provision tramples on the extensive rules and procedures outlined in 36 C.F.R. § 223.136, et seq. with regard to the debarment and suspension of a citizen from contracting with the federal government, which is governed by federal law. In sum, we reiterate that in implementing Good Neighbor Authority, the Forest Service and the States need to think through the many twists and turns associated with it. If that does not occur, the program will likely go the way of other interesting programs aimed at better management of the National Forests. To date, the evidence indicates that not enough thought has gone into the implementation of Good Neighbor Authority, which is fraught with the potential to ignore statutory requirements and/or to violate the Supremacy Clause of the Constitution. Government Accountability Office Announces Proposed Rule Amending Bid Protest Requirements