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Military Law Review Vol. 80 DEPARTMENT OF THE ARMY PAMPHLET 27-100-80 MILITARY LAW ! REVIEW VOL. 80 A CONTRACT LAW SYMPOSIUM: INTRODUCTION b3 7 1 Articles zI OD ADVOCACY AT MILITARY LAW: THE 0 LAWYER‘S REASON AND THE SOLDIER‘S FAITH THE TEACHING OF PROFESSIONAL RESPONSIBILITY TO FEDERAL GOVERNMENT ATTORNEYS: THE UNEASY PERCEPTIONS THE ANTI-DEFICIENCY ACT (REVISED STATUTES 3679) AND FUNDING FEDERAL CONTRACTS: AN ANALYSIS AN ANALYSIS OF ASPR SECTION XV BY COST PRINCIPLE i 9’ Y SETTLEMENT OF CLAIMS ARISING FROM OD IRREGULAR PROCUREMENTS Book Reviews Books Received and Briefly Noted Cumulative Index, Volumes 75 through 80 HEADQUARTERS, DEPARTMENT OF THE ARMY Spring 1978 Pamphlet HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-80 I WASHINGTON, D.C., Spring 1978 MILITARY LAW REVIEW-VOL. 80 Page A Contract Law Symposium: Introduction Major Percival D. Park .............................. V PROFESSIONAL RESPONSIBILITY AND LEGAL EDUCATION Advocacy at Military Law: The Lawyer’s Reason and the Soldier’s Faith Colonel Frederick Bernays Wiener, AUS, Retired ..... 1 The Teaching of Professional Responsibility to Federal Government Attorneys: The Uneasy Perceptions Captain William R. Robie ............................. 29 ARTICLES: CONTRACT LAW SYMPOSIUM The Anti-Deficiency Act (Revised Statutes 3679) and Funding Federal Contracts: An Analysis Major Gary L. Hopkins and Lieutenant Colonel Robert M. Nutt .................... 51 An Analysis of ASPR Section XV by Cost Principle Captain (P) Glenn E. Monroe .......................... 147 Settlement of Claims Arising from Irregular Procurements Major Percival D. Park ............................... 220 BOOK REVIEWS Basic Techniques of Public Contracts Practice Reviewed by Lieutenant Colonel Robert M. Nutt ........ 267 i Page International Law-The Conduct of Armed Conflict and Air Operations Reviewed by Major James A. Burger.. ................. 259 Legal Implications of Remote Sensing from Outer Space Reviewed by Major Gary L. Hopkins ................... 266 Estate Planning Deskbook Reviewed by Captain Brian R. Price ................... 268 BOOKS RECEIVED AND BRIEFLY NOTED. ............ 273 CUMULATIVE INDEX, VOLUMES 75 through 80 ........ 278 ii MILITARY LAW REVIEW EDITORIAL POLICY: The Military Law Review provides a forum for those interested in military law to share the product of their experience and research. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Military Law Review does not purport to promulgate De- partment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. Masculine pronouns appearing in the pam- phlet refer to both genders unless the context indicates another use. SUBMISSION OF ARTICLES: Articles, comments, recent de- velopment notes, and book reviews should be submitted in dupli- cate, double spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, U. S. Army, Charlottesville, Vir- ginia 22901. Footnotes should be double spaced and appear as a separate appendix at the end of the text. Citations should conform to the Uniform System of Citation (12th edition 1976) copyrighted by the Columbia, Harvard, and Univer- sity of Pennsylvania Law Reviews and the Yale Law Journal; and A Uniform System of Military Citation, published by The Judge Advocate General’s School, U.S.Army. EDITORIAL REVIEW: The Editorial Board of the Military Law Review consists of specified members of the staff and faculty of The Judge Advocate General’s School. The Board will evaluate all material submitted for publication. In determining whether to pub- lish an article, comment, note or book review, the Board will con- sider the item’s substantive accuracy, comprehensiveness, organiza- tion, clarity, timeliness, originality and value to the military legal community. There is no minimum or maximum length requirement. When an article is accepted for publication, a copy of the edited manuscript will be furnished to the author for prepublication ap- proval; however, minor alterations may be made in subsequent stages of the publication process without the approval of the author. Neither galley proofs nor page proofs are provided to authors. Re- prints of published articles are not available. SUBSCRIPTIONS AND BACK ISSUES: Interested persons should contact the Superintendent of Documents, United States Government Printing Office, Washington, D. C. 20402 for subscrip- iii tions. Subscription price: $7.65 a year, $1.95 for single copies. Foreign subscription, $9.60 per year. Back issues are available for military personnel through the U.S. Army AG Publications Center, 2800 Eastern Blvd., Baltimore, MD 21220. REPRINT PERMISSION: Contact the Editor, Military Law Review, The Judge Advocate General’s School, Charlottesville, Vir- ginia 22901. This issue of the Review may be cited 80 Mil. L. Rev. (number of page) (1978). ERRATUM The following copyright notice should have appeared among the footnotes on the first page of the article Miranda v. Arixona-The Law Today, by Major Fredric I. Lederrr, published at 78 Mil. L. Rev. 107 (1977). 0 1977 by Fredric I. Lederer. All rights reserved. Reproduction of any kind without the express permission of the author is prohibited. This article will comprise Chapter 27 of P. Giannelli, F. Gilligan, E. Imwinkelried & F. Lederer, Criminal Evidence, to be published by the West Publishing Company in 1977. The Editor apologizes to Major Lederer for this inadvertent omission. iv A CONTRACT LAW SYMPOSIUM: INTRODUCTION With this issue the Military Law Review initiates a series of vol- umes each of which will contain articles falling within a specified subject matter area. The present volume is devoted to procurement law, with three articles dealing with monetary aspects of federal government procurement. Future volumes will be dedicated to in- ternational law, administrative and civil law, military justice, and possibly other areas. Selection of a theme for a particular volume will depend upon the availability of relevant articles, and volumes in this series will not be consecutive. To introduce the entire series, the Military Law Review presents a lecture and a short article concerning various aspects of professional responsibility, which cuts across all areas of legal specialization. Colonel Wiener’s lecture focuses on appellate advocacy within the military justice system. He observes that, while the ethical respon- sibilities of military and civilian lawyers are the same, the military attorney has a further responsibility to combine with the virtues of the legal profession those of the profession of arms. Drawing upon his extensive experience in government and private practice, Colo- nel Wiener summarizes advocacy as the art of persuasion, and em- phasizes the responsibility of lawyers to learn how to be advocates. After presenting several examples of successful and unsuccessful advocacy, he closes with comments on the responsibility of courts to exercise judicial self-restraint. From Colonel Wiener’s commentary on learning by observation, the reader passes to Captain Robie’s article on learning by direct instruction. Captain Robie deals with professional responsibility in the ethical sense. He reviews the federal ethical considerations which implement the American Bar Association’s canons of profes- sional responsibility for federal attorneys. From his experience with the Legal Education Institute of the Civil Service Commission, Captain Robie describes the various methods of teaching profes- sional responsibility, and the problems and advantages of each. While Colonel Wiener is concerned with military justice, and more specifically with trial work, Captain Robie emphasizes the re- sponsibilities of federal attorneys who provide legal advice within government agencies, in like manner with corporation counsel. While a few federal procurement attorneys engage in the trial of contract disputes, and are therefore subject to substantially the re- V sponsibilities described by Colonel Wiener, most function directly or indirectly as advisors to procuring activities and thus are more likely to face the issues raised by Captain Robie’s article. Within government procurement no area requires more aware- ness of professional responsibility on the part of the federal attor- ney than does funds control. One of the most important standards for control of funds is the Anti-Deficiency Act, 31 U.S.C. 665 (1970 & Supp. V 1975), commonly referred to as Revised Statutes 3679. This statute provides the subject for the article by Major Hopkins and Lieutenant Colonel Nutt which opens the contract law sym- posium to which this volume is dedicated. The two authors consider every aspect of the operation of the Anti-Deficiency Act and its re- lationship with other statutes. They conclude with a recommenda- tion for careful coordination between procurement personnel and their legal and fiscal advisors. Such coordination may be fruitless if the parties concerned do not know in detail the types of federal expenditures which are permissi- ble. Further, although violations of the Anti-Deficiency Act are more likely to occur at the stage of contract formation, it is possible for them to occur later also, during contract performance. Captain Monroe’s article on the contract cost principles of Section XV of the Defense Acquisition
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