Termination for Convenience, the Doctrine of Executive Necessity and Government Contracting: Implications for Commonwealth Agencies such as Defence

U. of Adelaide Law Research Paper No. 2020-22

Mark Giancaspro, Termination for Convenience, the Doctrine of Executive Necessity and Government Contracting: Implications for Commonwealth Agencies such as Defence, 37 U. TAS. L. REV. 1 (2018).

26 Pages Posted: 24 Feb 2020 Last revised: 26 Feb 2020

Date Written: February 21, 2020

Abstract

All Australian Government agencies are involved in some form of commercial contracting. As the largest procurement agency in the Commonwealth, the Australian Defence Force (ADF'), for example, engages in a large number of commercial contracts to satisfy its military equipment, supply and service needs. As an organ of the Crown, the ADF enjoys a restricted executive power to terminate such contracts wherever necessary without consequence. This power is also reflected in the 'termination for convenience' ('TFC') clauses that are typically included in Defence contracts but which include compensatory provisions for innocent contractors. This article considers the implications of the executive necessity doctrine and TFC clauses for Government contracting using Defence as the agency of example, and attempts to resolve some important questions that arise from these features of government contracting.

Keywords: Contract Law; Defence; Executive Necessity; Government; Termination for Convenience

JEL Classification: K12

Suggested Citation

Giancaspro, Mark, Termination for Convenience, the Doctrine of Executive Necessity and Government Contracting: Implications for Commonwealth Agencies such as Defence (February 21, 2020). U. of Adelaide Law Research Paper No. 2020-22, Mark Giancaspro, Termination for Convenience, the Doctrine of Executive Necessity and Government Contracting: Implications for Commonwealth Agencies such as Defence, 37 U. TAS. L. REV. 1 (2018). , Available at SSRN: https://ssrn.com/abstract=3542017 or http://dx.doi.org/10.2139/ssrn.3542017

Mark Giancaspro (Contact Author)

Adelaide Law School ( email )

Ligertwood Building
Adelaide 5005, South Australia SA 5005
Australia

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