Administrative Discretion in the Award of Federal Contracts

For our present purposes, the point to be seen is that while this article is inquiring into the question of choice of contractor, the government is largely in control of the other chief attribute of traditional liberty of contract: the terms and conditions of the contract itself. We may thus summarize a first conclusion in the inquiry under consideration in this manner: the government is under no restraint as to many of the terms and conditions of its contracts and may impose those conditions it deems necessary. These are imposed as a result of a statute (an example of the Walsh-Healey Public Contracts Act) or an executive order (for example, the nondiscrimination in employment clause) or administrative regulation ( one of the more important is that allowing termination of the contract for "convenience of the government''). The Supreme Court has furnished explicit support for that conclusion: "Like private individuals and businesses, the Government enjoys the unrestricted power . . . to fix the terms and conditions upon which it will make needed purchases." What limitations, if any, exist as to choice of contractor by federal procurement agencies?

This half of the traditional liberty of contract concept is not so easily answered.