Though I usually side with process, before people jump on such high level power as too much of a hazard and opportunity for cutting corners, this power is absolutely needed. In a number of cases it has been vital for high level officials to cut through the FAR as Vern pointed out they can.

There were some interesting stories along those lines during the Gulf War and one thing that did come out after that was an interesting analysis of whether regulations or law caused problems. I believe some of the push for reform came from that analysis and some of the interest in Congress generated by (if I recall correctly) the relatively few cases in which need crashed against actual law.

Wonder if it might be useful to run acquisition drills along with major defense and other departmental emergency drills? That could identify some of the bumps in the road in time to fix them in advance of a real emergency. Anyone know if FEMA does that?

By bob antonio on Tuesday, May 9, 2000 - 01:11 pm:

Eric, Melissa, Vern, and Ramon:

Vern, I had the same thoughts, here is the response I was preparing.

This actually happened in the 1990s. The legislation for this agency gave the agency head contracting authority which could be delegated in accordance with FAR 1.601.

My initial impression was that the agency's top contracting officer (the cabinet officer) supported by the program office had reached a priced agreement.

Part 2:

The J&A was put together in the contracting activity but I forget its details. The contracting activity's contracting officer then had to determine a fair and reasonable price and contacted the private organization to discuss prices. The private organization said that a price was reached--$7 million--and there was no further reason to talk about it.

So the contracting activity's contracting officer put together a price analysis. It was a good effort but it was awful. The contracting officer decided that he could not certify that a fair and reasonable price had been achieved and he would not sign. He pushed it forward. It made a few rounds through the contracting activity and finally a consortium of individuals from inside and outside of the contracting activity signed off on a fair and reasonable price statement. The contract was eventually signed as a firm-fixed price of $7 million that was not negotiated.

I was involved in two meetings on this thing. One with the contracting activity and one with the private organization. The most interesting answer to any question was the private organizations's source of the price. The respresentative of that organization explained that the price was "pulled from out of the air."

Since it was a firm-fixed price that was not negotiated, I did not have access to the contractor's records.

By Vern Edwards on Tuesday, May 9, 2000 - 12:16 pm:

Bob:

I'm going to take you literally and assume that the agreement was made by the cabinet officer, i.e., the head of the agency.

See FAR 1.601(a). Cabinet officers are agency heads, and all contracting authority resides with the agency head. Agency heads are, by virtue of their positions, contracting officers. They don't need certificates of appointment in order to make contracts.

Agency heads have to comply with the procurement statutes, but not necessarily with the FAR. Agency heads can authorize individual deviations. See FAR 1.403.

If this happened to me I would approach my immediate superior about the need to comply with CICA and any other applicable statutes and then determine the current status of the transaction. My main goal would be to protect the agency head from any public embarrassment that could follow from failing to comply with the statutes and applicable regulations. If necessary, I would recommend corrective action.

I certainly would not process the matter as a ratification! Read FAR 1.602-3(a). The procurement cannot be an "unauthorized commitment," because the Government representative who made the agreement -- the cabinet officer/agency head -- does have the authority to enter into such agreements. (Besides: to whom would I submit it?)

The problem is that the contract may not have been entered into properly. A professional would find a way to make it right while still achieving his or her boss's objective.

Reminds me of a substitute instructor who had retired as contracting officer at a cabinet level. Found himself in almost exactly this position. Explained to the official why this was a bad idea without success.

The press release went out, and his story went that he spilled his morning coffee on his shirt and tie as he heard that and the result on the morning news at home. The official had forgotten to mention this to the people on the Hill, whose districts were effected, before going public. A very powerful House member was looking for blood and others were close behind.

The civil servant thought the summons to the front office was going to be painful, but he said he got in a limo and went to 1600 Pennsylvania where he got to meet the CoS and Attorney General. Tempers were soothed, things put sort of right, and he says he had an interesting series of occasional lunches with his repentant boss and the AG. Apparently his boss had caused enough embarassment to come close to the sword bit and began to listen.

Interesting story. At least illustrates how the politicals may do things mere mortals shall not, but even at those levels there are consequences. The agency's next budget hearings could be quite interesting under such circumstances.

It also illustrates the ego thing I mentioned over in "Something for Nothing." There is so often a way to do what is desired with actual improvement if issues are confronted and reasonably worked. It does not even mean terrible delays. It means leaving the "I want/my way" at the door and working issues quickly in concert - actually the way a high level IPT should work.

By Eric Ottinger on Tuesday, May 9, 2000 - 11:37 am:

Bob,


Reminds me of the time when the Admiral negotiated $500K for something and the only issue left to us low level negotiators was the trivial question of what we might be buying.

At the risk of being repetitive, I would go see Counsel.

Also, speaking seriously, it is our job to keep things straight, but it is also our job to keep our agencies out of trouble. That includes the fools and the egotists in high positions.

To make a dumb obvious point, most authorities reside with the “Agency Head.” The cabinet secretary probably didn’t do anything illegal.

In any case, Agency Counsel will be highly motivated to make sure that everything is legal and stays legal.

If the agency head has really violated the law (i.e. CICA) you may very politely explain the consequences to a mere civil servant when he/she signs a document in defiance of the law and suggest that it would be better that the Agency Head consult with Counsel and sign the document himself.

I agree with Melissa generally. I would note that a ratification normally requires someone to fall on his sword and admit doing something improper, in writing. Your Counsel and the Agency Head will probably do their best to figure out why the deal was legally OK.

Eric

By Melissa Rider on Tuesday, May 9, 2000 - 10:41 am:

I would process it as a ratification under FAR 1.602-3 if the contractor has already begun performance. If we have not yet received a benefit, I would find out if this was a legitimate
sole source action (and make the program office justify it IAW FAR Part 6 probably using exception 7, public interest, because the head of the agency gets to determine when that exception applies and the head of the agency issued the press release).

(In reality I would have acted earlier, immediately after I read the press release to STOP the action until we let a contract and get a retraction printed.)

(Note that this is my personal opinion.)

By bob antonio on Tuesday, May 9, 2000 - 09:26 am:

Here is one for you.

Part 1:

The head of a federal agency--in this case a cabinet officer--issues a press release. The press release announced that an agreement had been reached with a private organization to do some work for $7 million. The press release further explains that the agreement was concluded between the agency's program office and the private organization.

After a month or two, you receive the procurement request with the attached press release. You set the request aside hoping it will go away. The next day it is still there. What do you do?