Anonymous of April 11 at 9:07am:

My thoughts are this: I'm glad you aren't arguing too strenuously and I wish you hadn't argued at all. No contracting officer has the authority to violate a regulation when awarding a contract. All you have to do to verify the truth of my statement is read FAR § 1.602-1(b), which states:

"No contract shall be entered into unless the contracting officer ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met."

Note the word "all," which I have underlined. Note, too, FAR § 1.602-2, entitled, "Responsibilities," and which states:

"Contracting officers are responsible for ensuring performance of all necessary actions for effective contracting, ensuring compliance with the terms of the contract, and safeguarding the interests of the United States in its contractual relationships. In order to perform these responsibilities, contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall-

(a) Ensure that the requirements of 1.602-1(b) have been met, and that sufficient funds are available for obligation;

(b) Ensure that contractors receive impartial, fair, and equitable treatment; and

(c) Request and consider the advice of specialists in audit, law, engineering, transportation, and other fields, as appropriate."

Note the word "shall," which I have underlined and which re-emphasizes § 1.602-1(b).

Finally, look at SF1402, Certificate of Appointment. It says that so-and-so is appointed contracting officer for the United States of America, "Subject to the limitations contained in the Federal Acquisition Regulation... ." Now, if a contracting officer's appointment and authority is limited to acquisitions in which all requirements of statute, regulation, etc., have been met, and if a contracting officer makes a commitment in which he or she has exceeded that authority, then I think that commitment is, by definition, an unauthorized commitment and must be ratified in order to be binding on the government.

You have misread the Cubic decision. For one thing, in that case the government had ratified the CO's action by defending it in court. Moreover, the court said: "If the contracting officer has viewed the award as lawful, and it is reasonable to take that position under the legislation and regulations, the court should normally follow suit."

Underlining added. And here is what the ASBCA said about that decision in its own decision in the matter of Eros Division of Resource Recycling International, Inc., ASBCA No. 48355, 99-1 BCA ¶ 30,207 (December 31, 1998):

"The court held that the contracting officer had authority to award the contract; her failure to follow the statutory procedure did not mean that she lost her underlying authority; the agency did not lack appropriated funds for the contract; and the error did not harm the public interest, for whose protection the statute was enacted, because the illegality was not plain since all participants operated under the impression that the statute was inapplicable; and Cubic, which had reason to know of the application of the statute before the solicitation was issued, did not assert timely the illegality of the solicitation."

Underlining added.

By Vern Edwards on Friday, April 18, 2003 - 12:48 pm: