Doing research on another issue, I ran across the following in vol. 1 of the McBride, Wachtel and Touhey government contracts series (presumably a respectable source):

"With respect to contracts, it is generally the rule that the agent may appoint a sub-agent to perform the mechanical task of executing a contract provided that the agent himself has first determined the propriety of the execution. A delegation of this nature is not regarded as the delegation of a discretionary authority."

And then this, which sounds like the arguments from earlier posts:

"The signing of a government contract in the name of the contracting officer by some other person does not invalidate the contract where that procedure was the practice used in that procurement office, was authorized, and where its binding effect was recognized by the contracting officer."

I suppose that McBride and Touhey could be obviously wrong, but they do state it as a current principle, not an obsolete or superceded practice.

John Ford   Posted on Sunday, June 29, 2003 - 10:54 am:   

The issue raised here is not whether this is a good practice, but whether the contract is enforceable. Put another way, can either party escape its obligations under the contract because the contracting officer permitted someone other than the contracting officer to sign the contract? In this case, a board or court would likely not permit such an outcome, particularly if the contract has been performed and the government has received a benefit from the performance, but would hold that the contract is enforceable either as an actual contract or an implied in fact contract.

Vern Edwards   Posted on Sunday, June 29, 2003 - 11:27 am:  

MM:

I had not heard of the McBride, Wachtel and Touhey government contract series before your post and I cannot speak to its quality. (The complete citation, as given by Georgetown University Law Library, is: Government contracts : cyclopedic guide to law, administration, procedure, by John Cosgrove McBride assisted by Thomas J. Touhey and Isidore H. Wachtel. It is a looseleaf service published by Lexis/Nexis. I could find only two references to it in board and court decisions, both by the Court of Federal Claims, one in 1997 and another in 1999.) I won't comment on the quote that you provided, since I don't know its context. The following explains my stance on this issue.

The FAR says:

"Unless specifically prohibited by another provision of law, authority and responsibility to contract for authorized supplies and services are vested in the agency head." (FAR § 1.601)

"Agency heads or their designees may select and appoint contracting officers and terminate their appointments." (FAR § 1.603-1)

"Contracts may be entered into and signed on behalf of the Government only by contracting officers." (FAR 1.601)

"Only contracting officers shall sign contracts on behalf of the United States. The contracting officer's name and official title shall be typed, stamped, or printed on the contract." (FAR 4.101)

"Contracting officers may bind the Government only to the extent of the authority delegated to them." [FAR 1.602-1(a)]

"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." [FAR 1.602-1(b)]

I therefore conclude as follows:

1. A contracting officer may ask another person to physically sign the contracting officer's own name to a contract. In this case, under common law principles it is actually the contracting officer who is doing the signing. The contracting officer is responsible for complying with FAR § 1.602-1(b). The contracting officer ought to have his or her boss's assent to this procedure and the person signing the contracting officer's name ought to have some proof that the contracting officer authorized him or her to sign the contracting officer's name.

2. Contracting Officer A, having prepared a file and a contract for signature, can ask Contracting Officer B to sign the contract. If Contracting Officer B agrees to do so, then Contracting Officer B signs his or her own name and assumes responsibility for complying with FAR § 1.602-1(b). Contracting Officer B cannot evade responsibility for complying with FAR § 1.602-1(b) by signing: "Contracting Officer B for Contracting Officer A."

3. Contracting Officer Jane Doe cannot authorize John Brown, a non-contracting officer, to sign John Brown's name to a contract or to sign his own name "for" Jane Doe, because FAR § 1.601(a) says: "Contracts may be... signed... only by contracting officers," and FAR § 4.101 says: "Only contracting officers shall sign contracts on behalf of the United States." However, I suppose that if Jane Doe is an appointing official she can make John Brown a contracting officer for that purpose.

Courts seek fair resolutions of disputes and courts won't declare a contract invalid because Contracting Officer B signed "for" Contracting Officer A, since B is a contracting officer. I'm not sure what a court would do if a John Brown, a non-contracting officer, signed "John Brown for Jane Doe, Contracting Officer" but I suspect that a court would not invalidate the contract if the government did not want to have it declared invalid. However, whatever the courts will or will not ultimately decide with respect to the validity of a contract, contracting officers must comply with the FAR and ensure compliance with FAR § 1.602-1(b).

If a contracting officer working for me signed his or her own name to a contract "for" another contracting officer and disclaimed responsibility for complying with FAR § 1.602-1(b) because he or she was only signing "for" the other, I would immediately terminate his or her appointment as a contracting officer, if I had appointment authority, or have it terminated.

For a general discussion of the contracting authority of government personnel, see Formation of Government Contracts, 3d ed., by Cibinic and Nash, pp. 80 - 127.

The persistence with which this question has been pursued by some people at this forum has convinced me that in some offices some contracting officers are signing "for" others in the belief that they are not personally responsible for what they have signed. This is too bad, but in view of the virtually lawless environment of today's contracting offices (I'm increasingly inclined to believe that Prof. Steven Schooner was right in this regard), that doesn't surprise me very much.

John Ford    Posted on Sunday, June 29, 2003 - 01:56 pm:

Vern, I don't know what Steve had to say about lawless contracting offices, but based upon my experience, I am afraid that is happening more and more. There can be many causes for this, i.e., lack of resources to handle the workload, contracting out contracting, extensive use of GSA schedules, etc. In any event, I believe this is something that all contracting professionals need to look at and get their own house in order before we have another Ill Wind type scandal. The Libertatia case you mentioned earlier is a prime example of this lawlessness.

Anonymous  Posted on Sunday, June 29, 2003 - 02:49 pm:   

This reference may or may not be the one Vern had in mind. This piece in Government Executive does address the problem: Suspensions Are Just a SideShow by Steven L. Schooner.

 

More importantly, oversight of the government's purchasing regime is at unprecedented lows. During the 1990s, Congress systematically eviscerated the government's acquisition workforce, while greatly expanding flexibility for government buyers. This Faustian bargain—greater buyer discretion in exchange for unjustified but politically popular personnel cuts—left a daunting legacy. Today, government buyers are overworked, under-trained and retirement eligible.

The constant deluge of unfulfilled government needs means the remaining workforce must keep buying. The shadow government described by Brookings Institution scholar Paul Light — which converts civil servants into contractor personnel—increases the government's reliance on service contractors. Good service contracts are difficult to write and even harder to manage. Yet fewer resources remain to plan these procurements, monitor contracts, or supervise the buyers responsible for these activities. Those affected most dramatically by the 1990s workforce cuts were auditors, quality assurance personnel and accountants. As a result, a growing sense of lawlessness pervades a system that spends more than $200 billion each year.

(Emphasis added)

Vern Edwards  Posted on Sunday, June 29, 2003 - 04:03 pm:   

My reference to lawlessness was from Schooner's 2001 article, "Fear of Oversight: The Fundamental Failure of Businesslike Government," which was published in the American University Law Review. You can access it at the Wifcon Analysis page. Here is what he said:

"Although purchasing may seem mundane in light of the government’s myriad responsibilities, Uncle Sam shops incessantly, annually spending more than $200 billion on a veritable cornucopia of goods and services procured from most every sector of the economy. Because these sums represent a significant portion of the public’s taxes, Congress and the public historically have scrutinized the government’s purchasing practices. Yet, over the last decade, as a by-product of aggressive reform of the federal procurement process, oversight of government spending—-both internal and external—-has plummeted. This oversight diminution resulted in a reformed buying regime lacking meaningful oversight and rapidly propagating a culture defined by lawlessness. Just as prosperity can breed complacency, reduced oversight in an era of increased government employee discretion should cause alarm." Footnotes omitted.

I don't agree that acquisition reform and a customer service attitude, in and of themselves, have been the chief sources of lawless behavior. Contracting officers who know what they are doing and who are willing to study and rise above on-the-job training can exercise discretion and provide good customer service within the law. The problem has been in the incompetent way that contracting officers, chiefs of contracting offices, and heads of contracting activities have exercised discretion and managed reform. They have thrown the rulebook out of the window. I have taught classes in which people brought and referred to CCH "baby FARs" that were four years old and that they had not kept up-to-date. They were using them on the job!

Most contracting officers that I meet today know very little about the rules. They are like the one recently reported by the DOD IG who tied an $11 million "performance-based" payment to contract award.

I am convinced that the the clericalization of the work of contracting officers which has taken place during the last decade and a half (and which is associated with office automation and certain government personnel policies and working conditions) has greatly diminished the dignity of contracting work and of the contracting officer corps and the competence of the contracting workforce. The level of professional knowledge and competence in the contracting workforce is low and getting lower all the time.

I assigned the Libertatia case as reading in a class that I taught recently in which several contracting officers were in attendance. I asked them whether any of them had seen conduct on the part of a CO and/or COR such as that described by the Court of Federal Claims. Several of them said that they had. It was very discouraging.

Anonymous  Posted on Sunday, June 29, 2003 - 06:34 pm:   

The Libertatia case is probably nothing new in the environment from which it comes. Its equivalence of combined ignorance and open flouting of rules and law in more mainstream acquisition environments is what is really discouraging. As for Libertatia, the "good ole boy" network has been alive and well at such installations ever since Uncle brought big time projects to the hinterlands. I was absolutely amazed at the number of "cousins" involved on both sides of the contract fence at one. Even church membership appeared to be an unstated factor in selection.

No, reform itself is not the problem. Schooner's "Faustian bargain" is a problem. I do not think my memory is failing when I say that one premise of reform was a more sophisticated contracting force. The whole point, at least in DoD, was to improve the expertise level of people who would then use a wider and more rational set of tools to deliver better results. The actual result is similar to a move to repeal all those overly detailed traffic laws on the premise we have better drivers while gutting driver education, license testing and traffic police. Crashes will increase. At some point the carnage will become so obvious that the pendulum will slam over to the other side.

One has to wonder how clueless, or perhaps mal intended, governments have to be to fail to understand the principle that greater freedom requires greater responsibility. One begins to wonder whether this Faustian bargain was entered through ignorance or for the purpose of opening the Treasury for looting.

Tricia  Posted on Friday, August 29, 2003 - 11:36 am:   

Speaking of Contracting Officer's responsibility, does anyone know where I can get a copy of the full Comptroller General Decision on the case about the Panama Canal Commission and John Martino, B-262168, May 24, 1996? I saw the reference in another thread regarding CO duties/responsibilities.

Vern Edwards  Posted on Friday, August 29, 2003 - 12:10 pm: