AL, you're like a hand being held out to a drowning man!
Vern, what's your answer to the second part of AL's question: "And, if you buy that, is it any different if he has perfectly good hands, but is on the phone, hundreds (or even just a few) miles away, and asks the same thing of his assistant?"

In your response to Al's first question, you pointed out that it's OK because the signer is not signing "for" in the sense of an agent; he is performing the authorized act of inscribing the CO's signature. That's what I'm trying to get at. It's not a delegation of authority; it's not agent/principal; it's making a mark that the CO adopts as his signature. That, incidentally, is why I haven't answered your questions. You've framed the issue only as agency and delegation questions. The real issue may be the meanings of "signed" and "execute."

I suppose we could debate the Lee memo. Surely her order to the Army required her to have actual authority, just as a CO has authority. She couldn't boss around the Army without authority any more than a CO can sign a contract without authority. However, my only point was to illustrate the lack of significance of your own personal signature on an executed action. It was not meant to be an exact parallel to contracting.

Anonymous 10:21, get real yourself. Your complaint is with the UCC and contract law, not me. If you don't think that those examples can serve as "signing" then you need some CLE. I'll help get you started with a quote from the UCC definition of "signed" and the accompanying comments: "Signed includes any symbol executed or adopted by a party with present intention to authenticate a writing." "Authentication may be printed, stamped, or written; it may be by initials or by thumbprint. It may be on any part of the document and in appropriate cases may be found in a billhead or letterhead...The question always is whether the symbol was executed or adopted by the party with present intention to authenticate the writing."

Criminy indeed.

By Anonymous 10:21 on Friday, February 07, 2003 - 10:03 pm:

By the party Ron, not a stand in. As Vern has made abundantly clear the CO has been delegated authority that isn't further delegated for this particular function.

Even used car dealers, anxioius to make a sale, know better than to let Jane Doe walk in off the street and sign a loan for John Roe with nothing more than a letterhead and a stamp.

By Vern Edwards on Friday, February 07, 2003 - 11:02 pm:

Ron:

I'm not going to waste any more time on a man who thinks that signing a policy letter is like signing a contract. You are beyond redemption. I have no respect for the position that you're trying to defend.

By formermil on Saturday, February 08, 2003 - 01:44 am:

What about the answer to Al's second question Vern? I'm waiting too.
I don't join these discussions because of the way some of you treat others that don't agree with you. Whatever happened to respectfully disagreeing?
Frankly, I'm beginning to see the point. If signing for someone meets the legal definition of a signing, then "CO2 for CO1" equals CO1. If so, then CO1 has signed the document. If CO1 has signed the document, then he and not "scribbler" is responsible.
In my career I've seen hundreds of things signed for someone else. I've seen General's orders (not policies!)signed by Majors, and you know darn well the General didn't delegate his authority to the Major, just his signature. I've seen contracts, legal briefs, invoices, you name it, signed for someone. It must be because the "signing for" is the legal equavalent of the actual signature. How can it be OK in all of those cases, but just not this one?
So what about Al's question?

By Anonymous on Saturday, February 08, 2003 - 12:49 pm:

Jeez, why all the venom? It sounds like the real issue is what is the legal significance of the entries in the signature block. IT looks like if someone properly signs for another, the first is the legal executing party, not the signer. If that's the case, then the "signing for" did not execute the contract, the assigned CO did.
It would certainly help if anyone knows of a case where there have been adverse legal consequences from properly signing for the assigned CO. I know it's been done because I've seen it too.

By Anonymous on Saturday, February 08, 2003 - 12:53 pm:

I agree with Vern. The questions also made me begin thinking. Why is it acceptable for a Major to sign for a General on orders that send people to potential death and dismemberment? Why is it not in the contracting officer's case? I believe the answer is in the legal and customary framework in which the two operate.

The best way I can explain what I think is the key is by using an example. It is one that I fear has also been eroded in recent decades. Nevertheless, it is still the nominal state. Instead of a General I'll use a ship's Captain.

The Captain is responsible. Even if a junior officer runs aground it is the Captain's responsibility. In principle the junior officer's training and capability are the Captain's responsibility to conduct and assess. The junior should not have been in the position to make the mistake if the Captain was in doubt. It is still a long honored military principle of command, part of the pride and prestige of command, and historically Admirals were punished (Admiral Bing's execution in 1756) for failure that was not entirely theirs. The point? In these command cases, even civilian management cases, the responsibility rests with the designated and individual position filled by a single person.

Why do I think it different in contracting? The contracting officers are liable as individuals and there are multiple equivalent positions. In the stated case we are given contracting officers within an agency holding the same warrant signing for each other. This is actually the equivalent of one ship's Captain or one Division's Commander signing orders for another. That would not be acceptable in any chain of command I've ever heard about because the "chain" is broken and responsibility is diffused.

As I said, these principles are apparently eroding and in modern times. To my knowledge Captains of ships have managed to divert blame to juniors even when they were clearly negligent themselves. I'm afraid I am well on the way to concluding that "anything is acceptable" is in fact gaining ground in positions once filled with honor, duty and responsibility. I'm with Vern. Any agency or contracting officer thinking this is acceptable practice is well down that slope.

Now, I will offer an alternative. Using the example in NOAA's web page, Delegation/Flow of Procurement Authority, we see this:

• President delegates authority to Head of the Agency
• Head of the Agency delegates to the Procurement Executive (PE)
• PE delegates to the Head of the Contracting Office (HCO)
• HCO delegates to the Contracting Officer (CO)
• HCO delegates to the Contracting Officer's Technical Representative (COTR)

I'd buy one CO signing for another CO under the command principle that the lowest unique individual responsibility lies at the HCO level or above in this scheme. I'd agree the individual occupying that single responsible position bearing all responsibility and liability for the conduct of subordinates by law and custom can delegate responsibility to sign for them. Turn contracting officers into simple subordinates of the one person in an agency that will hold command responsibility and who cares. If neither CO reads the contract HCO goes to jail or pays. Maybe that would improve a situation I believe is beginning to rot.

[By the way, Voltaire commented on Bing's execution: "merely pour encourager les autres ("in order to encourage the others"). Maybe we need a return to some of this tough individual responsibility.]

By Vern Edwards on Saturday, February 08, 2003 - 01:11 pm:

Formermil:

This is going to be long, but you asked for it so get a cup of coffee before you start reading. Before I answer your question, I want the opportunity to review. Here is the question that started this thread, from AnonJan31 on Jan 31 at 9:45 a.m.:

“Can one Contracting Officer sign for another Contracting Officer? That is, can CO (John Doe) sign a document on another CO's (Jane Doe's) signature block (that says JANE DOE, Contracting Officer) if Jane Doe gave John Doe permission to do so?”

What AnonJan31 asked was if John Doe, a contracting officer, could inscribe his signature over Jane Doe’s typed name and title. You can verify this interpretation of the question by reading the other posts of Jan 31. Since only contracting officers can obligate the government [see FAR § 1.601(a)], Jane recognizes that the contract must bear the signature of some contracting officer, that’s why she asked John to sign. Thus, Jane is asking John to use his contracting officer authority to complete a transaction for which she had done the preparatory work. I responded that if John signed then he would be the obligating contracting officer and he would be responsible for compliance with FAR 1.602-1(b), not Jane, and that he should personally confirm compliance with FAR 1.602-1(b) and sign over his own printed name.

AL asked two different questions. I’ll quote them here so you won’t have to go back and forth between the two parts of this thread.

First question: “Imagine a KO who, for whatever reason, has temporarily or permanently lost the use of his hands. He thoroughly and correctly works up a contract action, ensures that everything is done correctly, and is ready, willing, and able to accept responsibility for the resulting contract. However, he can't sign the page, so he calls over his assistant, and says something like, 'I have done all the things I need to do to be satisfied this is the correct thing to do, done correctly, and I want to signify my agreement to and acceptance of the contract on behalf of the United States. Please write my name in the signature block for me.' Has he not signed the contract, in the sense of indicating his acceptance/agreement?”

Underlining added.

Second question: “And, if you buy that, is it any different if he has perfectly good hands, but is on the phone, hundreds (or even just a few) miles away, and asks the same thing of his assistant?”

Do you see the distinction between AnonJan31’s question (as I interpreted it) and AL’s questions? AL asked if Jane’s assistant could inscribe Jane’s signature over Jane’s typed name and title. The assistant is not a contracting officer and has no authority to obligate the government, he would simply be signing Jane’s name with Jane’s permission because she is physically unable to do so. Jane would be obligating the government, not the assistant, and Jane would be responsible for compliance with FAR § 1.602-1(b).

You already know my answer to AL’s first question. Here’s my answer to his second question: The situation in the second question is fundamentally the same as in the first question: the contracting officer would like his assistant to inscribe the contracting officer's signature because the contracting officer is physically unable to do so. The contracting officer should ask his supervisor if it would be okay for his assistant to inscribe the contracting officer’s signature on the contract document. If the supervisor assents to this procedure, then she, the supervisor, should prepare a short memo for the contract file documenting her assent. (This is mainly to protect the assistant.) The assistant could then inscribe the contracting officer’s signature, not the assistant’s, over the contracting officer’s typed name and title.

I engage in many business transactions that require my signature and because I am frequently away when my signature is needed I have signed many notarized powers of attorney authorizing someone else to sign “for” me. My agent signs: “Vernon J. Edwards by William Anderson, Attorney-in-Fact.” Bill’s signature “for” me binds me to the deal; I am the responsible party, not Bill. I can give Bill power of attorney because I am acting in my own behalf.

Contracting officers are agents of the United States of America and in that capacity act on behalf of the United States; they do not act on their own behalf. They have only the authority delegated to them and that authority ordinarily does not include the authority to empower others to act in their behalf as contracting officers. So, going back to AnonJan31’s question, if John signs, then John is acting as the agent of the United States based on the authority delegated to him by the United States, not based on the authority delegated to Jane, and he is responsible for compliance with FAR § 1.602-1(b), not Jane.

As to your reference to “the legal definition of a signing,” here’s how Black’s Law Dictionary defines signature: “A person’s name or mark written by that person or at that person’s direction.” (It does not define "a signing.") That definition covers AL’s questions as I’ve answered them, but it’s got nothing to do with AnonJan31’s question. AnonJan31 didn’t ask about John inscribing Jane’s signature with her permission, she asked about John inscribing his own signature over Jane’s typed name and title. That’s a signing all right -- John signing John’s name, which as far as I’m concerned makes John the contracting officer of record and responsible for compliance with FAR § 1.602-1(b), not Jane. Why would John inscribe his signature over Jane’s typed name and title? Does he think that doing so makes Jane responsible, instead of him?

Formermil, I am not interested in your experience with signatures on military orders, legal briefs and invoices, or with Ron's experience with signatures on policy letters. Those signatures are not regulated by the FAR. I am interested only in signatures on contracts. In my experience military orders have been posted over the name and title of the command adjutant, a staff officer expressly empowered to sign “For the Commander.” As to legal briefs, here is what the Federal Rules of Civil Procedure say about documents submitted to a court:

“Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

"(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of attorney or party.

“(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--

“(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

“(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

“(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

“(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

“(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

Note: “signed by at least one attorney of record in the attorney’s individual name,” not signed by one attorney over another attorney’s name. I am going to presume that for the purpose of sanctions the violator is the person who signed his or her name or had it signed at his or her direction.

Invoices don’t have to be signed. I don't know of any rules about who can sign policy letters. They probably vary from one organization to another.

Formerfed, I hope that I have satisfied your curiosity.

Everyone:

Those who propose that one contracting officer can inscribe his signature “for” another and escape responsibility for compliance with FAR § 1.602-1(b) by doing so over the other's typed name and title do not understand the nature of the contracting officer appointment and, in my opinion, respect neither its importance nor its dignity. I managed contracting offices in two agencies -- the Air Force and the Department of Energy. If I had ever learned that two of my contracting officers had agreed that one would sign his name “for” the other over the other’s typed name and title, I would have given them both a formal reprimand. If I had learned that the one who signed had not independently verified compliance with FAR § 1.602-1(b), then he or she would have lost their contracting officer appointment by the close of business that very same day.

Now, I have explained this clearly as I can and for the last time and readers either get it or they don’t. If you don’t, so be it, but I have nothing more to say.

Vern

By Vern Edwards on Saturday, February 08, 2003 - 01:13 pm:

I asked if I satisfied formerfed's curiosity. I meant formermil. Sorry, formerfed.

Vern

By AnonJan31 on Saturday, February 08, 2003 - 09:39 pm:

One of the points I made in discussing this issue with my supervisor is that a CO's signature block signifies or represents his own warrant. If John Doe signs "for" Jane Doe, it's as if John is representing that he is using Jane's warrant to enter into the contract rather than his own. What's up with that? That's not right.

Along the same lines, when your doctor writes a prescription, he does so on his own letterhead. If you go to a back-up doctor because yours isn't available, the back-up doctor isn't going to write a prescription on YOUR doctor's letterhead; the back-up doctor will write it on his own letterhead. Each doctor has a license to practice medicine, but no doctor is going to write prescriptions on another doctor's letterhead. That's because the doctor who is writing the prescription has taken on the responsibility himself even if he is backing up another doctor.

This same principle applies to CO's signing contract documents.

By the way, if this practice of signing "for" another CO becomes acceptable, I would get out of this business as fast as I can. I don't want to be involved in anything where a CO signed "for" me. Even if I had prepared an urgent modification, for example, on a Thursday and it came back signed by the contractor the next day, I would personally review the situation one last time to make sure nothing had changed and that the modification was ready for my signature. If I were absent and another CO signed that urgent mod "for" me because it had to be signed that day, I would go ballistic because I can't be sure that the CO who signed "for" me did his due diligence in making sure that the mod was ready "for" my signature. Although the mod didn't have my signature on it, it had my signature block on it which is personal to me. Don't do me any favors; I don't want other CO's signing anything "for" me.

By AnonJan31 on Saturday, February 08, 2003 - 10:29 pm:

Vern referred to this in his prior (long) response, and Formerfed cited this part of the FAR, but let me refer to it again because it needs emphasizing.

FAR 4.101 Contracting officer's signature.
"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. The contracting officer normally signs the contract after it has been signed by the contractor. The contracting officer shall ensure that the signer(s) have authority to bind the contractor (see specific requirements in 4.102 of this subpart)."

I think the first sentence says it all:
Only contracting officers shall sign contracts on behalf of the United States.

When a CO signs "for" another CO, he is clearly signifying that he is signing on behalf of that other CO, rather than on behalf of the United States.

The second sentence supports the first sentence:
The contracting officer's name and official title shall be typed, stamped, or printed on the contract.

This makes it clear to me that you don't sign "for" another CO. If you sign, your name and official title shall be typed, stamped, or printed on the contract; not some other CO's name and title.

I don't see any other way to interpret FAR 4.101.

By Vern Edwards on Sunday, February 09, 2003 - 11:41 am:

While doing some other research I came across a fascinating decision of the U.S. Court of Federal Claims that, while not bearing directly on the issue we have been discussing here, casts an interesting light on the topic.

FAR § 9.103(b) requires a contracting officer to make an affirmative determination of contractor responsibility prior to making a contract award. FAR does not require separate documentation of affirmative determinations of responsibility, but FAR § 9.105-2(a)(1) says: "The contracting officer's signing of a contract constitutes a determination that the prospective contractor is responsible with respect to that contract." FAR requires separate documentation only of negative determinations. FAR § 9.105-2(b) requires that any documents and reports supporting determinations, affirmative or negative, be included in the contract file.

Affirmative determinations of responsibility are generally not subject to review in protests. But last year a contracting officer's affirmative determination was the subject of a protest decision by the U.S. Court of Federal Claims. The court had orignially denied the protest, so the firm appealed to the U.S. Court of Appeals for the Federal Circuit. The circuit court ordered the Court of Federal Claims to permit the protester's attorney to depose the contracting officer to determine what basis he had for making his affirmative determination. Based on the deposition, the Court of Federal Claims then sustained the protest, stating:

"It is the court’s view, however, that the contracting officer, based on his deposition testimony in this case, failed to conduct an independent and informed responsibility determination. The testimony of the contracting officer indicates that he relied on the recommendation of the technical evaluation board, but that his reliance was misplaced. The review performed by the technical evaluation board was limited to checking the master list of debarred firms and cursorily confirming the offeror’s satisfactory performance on past contracts. That review merely assessed the technical acceptability of JVC but did not examine the offeror’s responsibility.

"The contracting officer relied on the technical evaluation board’s recommendation without making any independent inquiries about the responsibility of the offeror even though he was aware of an ongoing investigation at the Sigonella base as well as pending court proceedings and the appointment of legal representative to handle JVC’s contract administration. After he consulted with legal counsel about the existence of the legal representative for JVC and was advised of the administrator’s signatory authority, the contracting officer did not independently investigate or verify the information provided to him. The contracting officer acknowledged that he made assumptions about the terms of the receivership agreement, but he did not himself read it nor did he obtain assistance in reading it.

"Because the basis for the contracting officer’s procurement decision was not reasonable, specifically because the responsibility determination on which the award was based violated the standards set forth in § 706 of Title 5 of the United States Code, the court sustains the protest. See 5 U.S.C § 706 (1996). Plaintiff is entitled to relief."

All three court decisions are available through the Wifcon Courts & BCAs page.

See: Impresa Consturzioni Geom. Domenico Garufi, 52 Fed. Cl. 421 (May 3, 2002)

http://www.uscfc.uscourts.gov/Opinions/Hewitt/02/HEWITT.Impresaconstr.PDF

Impresa Consturzioni Geom. Domenico Garufi, 238 F.3d 1324 (Jan. 3, 2001)

http://www.ll.georgetown.edu/federal/judicial/fed/opinions/99opinions/99-5137.html

and Impresa Consturzioni Geom. Domenico Garufi, 44 Fed. Cl. 540 (August 12, 1999)

http://www.uscfc.uscourts.gov/Opinions/Hewitt/99/impresa.htm

Now ask yourself this question: Suppose that John Doe had inscribed his signature over Jane Doe's typed name and title and relied on Jane Doe's representations about the affirmative responsibility of the contractor. Suppose that he even looked at Jane's file documentation, but without independent consideration of the information in it. And suppose that one of the offerors protested to the U.S. Court of Federal Claims that the contracting officer's affirmative determination of responsibility was not reasonable. According to FAR § 9.105-2(a)(1) it is the contracting officer's signature that constitutes the affirmative determination of responsibility. So, who gets deposed, John or Jane? And if John had relied on Jane's representation without indendently inquiry or consideration, what might happen?

By 12:53anon on Sunday, February 09, 2003 - 12:42 pm:

Yesterday I posted a general argument about levels of responsibility and authority. That was largely in response to the comments formermil made about military officers signing for a superior as being applicable to this discussion. I believe formermil will have difficulty in finding cases where one commander signs for another in military practice. AnonJan31 mentioned doctors and prescriptions in a later post as another example where one responsible individual could not sign for another.

After a bit more consideration I am concluding that it is very rare, if not virtually unknown, for an individual filling an organizational responsibility to sign for another on policy matters. I do know of cases where this is acceptable for some routine matter simply requiring consent of an official of high enough rank, but cannot think of a case where policy or significant responsibility is involved.

I think there is a reason. There is an old principle that authority can be delegated, but not responsibility. Organizational responsibility, residing in a "responsible" individual, would be significantly undermined if individuals at equal levels "took responsibility" interchangeably. That is illustrated by questions raised here about identifying the responsible contracting officer if things go wrong under these circumstances. I don't have evidence in the form of widespread corporate policy. I do believe that examples given supporting AnonJan31 organization's acceptance of such action are off target.

Perhaps I am wrong, but I'd be very interested to hear of cases where officers in such positions of organizational responsibility can sign within another's sphere of responsibility. For formermil, can you give examples of the C.O. of one Army division signing policy for another Army division as an example or even C.O. of Company A signs policy for Company B? In all cases I know of it is a delegated subordinate within the same chain of responsibility. It would also surprise me if Ron can provide examples in industry or commerce where such organizational responsibility is confused by crossing this line.

There has been a good bit of discussion on Wifcon about the status of contracting officers. If they are indeed simply clerks and specialists and signing for a single responsible individual in an agency so be it. Appoint a single Procurement Executive with all responsibility, cancel contracting officers' warrants, redesignate them contract specialists and let them sign for the PE who has the single warrant and responsibility. When things go wrong the PE is called upon to account for all subordinates. Perhaps that is a way to streamline procurement. We would see the end of the formerly significant Contracting Officer. Perhaps AnonJan31 is seeing an organization confused and at some mid point in muddling toward doing just that. I'm hearing things that make me think that is the new wave.

The bottom line? I believe the organization with which AnonJan31 is having this discussion is violating sound organizational principles without even bringing into play those arguments specific to Federal contracting. It undermines the very concept of having a responsible individual within an organization.

By Eric Ottinger on Sunday, February 09, 2003 - 02:30 pm:

Ron, Anon31Jan, Vern & All,

I don’t think we have been giving Ron and Anon31Jan satisfactory answers. Contracting people have a couple of bad habits. One is confusing the procedure for the policy. The other is being moralistic when we ought to be analytical.

Anon31Jan agrees with us but she is trying to find something definitive to convince her management and coworkers. Ron is an outsider and he is trying to understand the folkways of our little community. There is no need to be rude to either of these folks.

Let’s look at FAR 1.602-1(b): “No contract shall be entered into unless the contracting officer [who signs the contract] ensures that all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have been met.”

Why do I assume that the “contracting officer” is the specific contracting officer who signs the document? It’s simple. There is no provision for anything else.

I think most of us read this in a very procedural way. I check for the funding document before I sign the contract or modification the same way I pat my pocket to make sure I have my keys before I lock the car door. It’s a reflex. I proofread the document to make sure everything is correct, complete and that I am not going to be embarrassed by careless typos. I check the package to make sure that all required clearances, determinations, clearances and approvals are in place and signed off.

The question of who is ultimately responsible is an ambiguous question. If higher management decides that too much money was left on the table, the contracting officer who signed the clearance is probably going to be on the hot seat. If there is an allegation of a criminal act, the person who actually performed the criminal act is going to be the target. If an issue ends up in court, the agency is going to be the defendant and several contracting officers may testify regarding various aspects of the case.

There was a Comp. Gen. case a while back which I found amusing. A contracting officer was given some very bad advice by her legal counsel to the effect that the offeror would not be allowed to mitigate even a trivial OCI. Of course this is a flat contradiction of the policy in the FAR and the contracting officer was ultimately responsible. Nevertheless, the Comp. Gen. was very careful to describe the interchange between the contracting officer and her GC and the really bad advice that she was given. The Comp. Gen. obviously wanted to take the poor lady off the hook.

Antideficiency, the quality of the document and the completeness of the file are absolutely the responsibility of the contracting officer who signs the contract. That’s what FAR 1.602-1(b) says in plain language.

If you want a case, the case that comes to mind is the A-12. It isn’t quite on point because the issue was a question of the contracting officer and a political appointee? The case came down to a question of who really made the decision. Did the contracting officer make the decision independently or was he signing “for” the head of the agency. The contracting officer recited how he had studied the issues carefully, thought long and hard for several days and reached an independent decision. The judge was convinced. The government won.

Of course, this was after many years and the legal fees and interest were greater than the GNP of several small nations. Almost any working level, street smart contracting person would have taken some care to document the file before sending the termination notice and thus have kept out of this mess. But it doesn’t appear that there were any working level, street-smart contracting persons in the room when the key decisions were made.

Let’s imagine that Admiral Morris had said, “Gee Judge, I don’t really know any of the details but the branch chief told me that the contracting officer who prepared the package was a really competent fellow and I was assured that everything was in order.” How do you think that would have gone over with the judge.

Vern,

The fact that the determination of responsibility is the signature did catch my eye. Obviously, the contracting officer can rely on others to make inquiries. However, if we have the contracting officer making the determination on no basis other the perception that some other contracting officer intended to make the determination, I think the court would be very skeptical.

Eric

By Vern Edwards on Sunday, February 09, 2003 - 02:56 pm:

Eric:

You've made a good analysis, but I disagree with two things you said. First, I think that I gave AnonJan31 perfectly satisfactory answers. Second, you said: "The question of who is ultimately responsible is an ambiguous question." I don't think that there is any ambiguity about who is responsible for a contract action.

We (or I) have been talking about who is responsible for compliance with FAR § 1.602-1(b). I don't think that there is any doubt about that -- it is the person who signed the contract, for the reasons I have already given. I say that because the FAR says that. As to who is responsible for a criminal act, it's the person who did the crime. Different problems. If a contracting officer commits a crime in the course conducting a contract action, then he is responsible in two ways: first, to the appointing official for not complying with FAR § 1.602-1(b), and second, to the Department of Justice and the courts for committing the crime.

That responsibility case is pretty interesting, isn't it. Worth an entirely separate discussion thread.

Vern

By Eric Ottinger on Sunday, February 09, 2003 - 05:52 pm:

Vern,

By "ambiguous" I meant that the question had several possible meanings.

We have provided some good arguments. I don't know whether we have provided the "definitive" argument. I'm sure there is a court case somewhere, but it may be necessary to go many years back to find it.

Eric

By Vern Edwards on Sunday, February 09, 2003 - 08:52 pm:

Eric:

I can't imagine why the issue would end up in court, unless the government somehow tried to repudiate a contract based on a signature. Otherwise, why would it become an issue between the contracting parties?

I'll search Westlaw.

Vern

By Vern Edwards on Sunday, February 09, 2003 - 09:09 pm:

I'm getting ready to travel, so before I spend an hour on the computer, let's all make sure that we're talking about the same thing.

Scenario: Contracting officer Jane Does does all the preparatory work and completes the contract file, but asks contracting officer John Doe to inscribe his name on the contract over JANE DOE, CONTRACTING OFFICER.

Issue: Whether John Doe or Jane Doe is the contracting officer of record, i.e., the contracting officer who is responsible for compliance with FAR § 1.602-1(b).

I say that John Doe is the contracting officer responsible for compliance and that Jane Doe's typed name and title are meaningless. The other camp -- e.g., Ron and his supporters -- argue that John can sign his own name "for" Jane and that Jane is the contracting officer of record.

We all agree that Jane can authorize John or anyone else to inscribe her signature over her typed name and title, so that there is no question who is the contracting officer of record.

Do we all understand the issue in the same way? Is there still a debate?

By AnonJan31 on Sunday, February 09, 2003 - 11:02 pm:

You captured the issue, Vern.

By Eric Ottinger on Monday, February 10, 2003 - 07:31 pm:

Vern & All,

Let’s say Susie Straightarrow is just about ready to sign a contract with International Megahype Inc. The file is sitting on her desk with everything nicely tabbed. The contract document went out to Megahype with Susie’s name and title in the signature block. At 4:00 P.M. Susie tells her boss, Mr. Ernest T. Waffle that everything is ready and she intends to sign the contract tomorrow, just as soon as three copies signed by the contractor arrive by Fed Ex. At 4:55 P.M. Susie receives a call from the production specialist who performed the pre-award survey. He has heard by word of mouth that Megahype may have been guilty of some Enron type creative accounting and some egregiously criminal mischarging of costs on government contracts. The production specialist cautions that this is all hearsay and suggests that Susie will probably want to wait for a few days to get better input before she does anything one way or the other.

Susie goes home with mixed feelings. She is grateful for the heads-up warning. She isn’t looking forward to the opportunity to get more face time with the lawyers and higher management. The next morning Susie calls in. Her little boy has come down with scarlet fever and Susie will be out for at least a day or two until her mother can drive down and help nurse the little boy.

Waffle is scheduled to be in meetings all day. However, at 11:00 AM Waffle’s secretary forwards a call to his cell phone from Waffle’s second level supervisor Mr. Bigpicture. Bigpicture wants the contract signed today. Megahype is involved in a very difficult negotiation with Premier National Bank. If Megahype doesn’t have a contract by close of business, the deal with Premier National Bank will fall through and the price of Meghype stock will drop by at least 50%. Waffle agrees that Megahype is an important part of the agency’s production base, and it would not be a good idea to hold up the execution of the contract any longer than necessary.

At the lunch break, Waffle goes to Susie’s desk, finds the Fed Ex package in Susie’s in-box. Unaware of Susie’s conversation with the production specialist, Waffle quickly reviews the file to make sure that funding is available and the J&A has been signed. Waffle puts his signature in the contracting officer’s signature block and hands the three signed copies to his secretary Ms. Doe Hall. Hall is instructed to “fix” the signature block. Hall writes “for” in each of the three signature blocks between Waffle’s signature and Susie’s typed name.

By Friday of that week, the CEO of Megahype has caught a plane to Latin America, wearing a disguise and carrying a fake passport. The New York Times and the Washington Post have made inquiries. Bigpicture’s boss, the agency head, wants to know what idiot CO would sign a contract with a conspicuously sleazy outfit like Megahype.

Does Megahype have a contract?

What if Ms. Doe had crossed out Susie’s name and written in Waffle’s name and title?

What if Ms. Doe had whited out Susie’s name and typed in Waffle’s name and title?

What if Waffle had sent three fresh copies of the face page to the contractor, with Waffle’s name and title in the signature block?

Eric

By Ron Vogt on Monday, February 10, 2003 - 08:33 pm:

After a weekend of recuperating from the body blows, I'm back. I'm glad to see that the rhetoric has toned down slightly (though who knows what people are really thinking inside!). I hope everyone realizes that my example of the Dee Lee memo was only to demonstrate the operation of a signature (i.e., does it have the effect of the "scribbler" or the "for"), and NOT to suggest any equivalence between memos, policies, orders, contracts,etc.

Vern, you summed it up nicely at 9:09, but left out one point: does John do an independent verification of the contract file before signing, whether signing his own name or Jane's name?
Also, am I correct in assuming that you are saying that if John signs Jane's name, she remains the responsible CO?
(with proper permission of course).

Eric, nice scenario, but holy crap, there are more issues there than on a law school exam!

By Vern Edwards on Monday, February 10, 2003 - 09:03 pm:

Eric:

You missed your calling. Mickey Spillane and Mel Brooks have nothing on you. Do you have an agent? Can I option the screenplay?

Ron:

John independently checks the file before he signs his name. If John signs Jane's name with Jane's permission (and their supervisor's approval), then Jane is the contracting officer of record and is responsible for compliance with FAR § 1.602-1(b). In that case, John does not have to independently check the file.

By Anonymous8 on Monday, February 10, 2003 - 09:14 pm:

Is Mr. Waffle a warranted contracting officer; and does his warrant give him the authority to sign for the level and type of purchase he just signed? And why is he signing - because his boss told him to? Does not sound particularly independent to me.

This sounds like a trick question. Seems to me that if you are a contracting officer, you better review what you sign, because it is your name and the authority granted to you that is on the line.

No one in my office can sign "for me" in the capacity of Contracting Officer. They can sign for me as Branch Head if they are "Acting" while I am away.

By AnonToday on Tuesday, February 11, 2003 - 09:02 am:

Anonymous 8, if Mr. Waffle is a warranted contracting officer with the same level and type of purchasing authority as Susie, what then?

By joel hoffman on Tuesday, February 11, 2003 - 09:19 am:

AnonToday,
Waffle should have called Susie to inform her that he intended to sign the contract. Susie should have mentioned when she called in to the office that she wasn't ready to sign the contract, as it was an important pending action.

Regardless, Waffle signed his own name as the KO, under the assumption that he would be shown as the KO. Waffle is the KO, not Susie. Even if Waffle tried to sign "for Susie", Waffle is the KO of record, not Susie. Susie had no intention of signing the contract, until she could verify the problem.

Nonetheless, there is a valid contract. An admin mod could be issued to correct the signature block. But that probably won't be necessary, because the contract might well be rescinded or terminated.

The Secretary misunderstood Waffle, perhaps due to poor communication, perhaps due to unclear policies.

Bottom line, Waffle executed the contract as a warranted KO. happy sails! joel hoffman

By joel hoffman on Tuesday, February 11, 2003 - 09:22 am:

I should have added that Waffle had no authority to sign a contract "For Susie", from the Government nor from Susie. Waffle is the KO of record. happy sails! joel

By ConAnon on Tuesday, February 11, 2003 - 09:57 am:

Before this reaches too pat of a solution a couple of things still bother me. The two issues seem to be 1) can one CO legally sign a document "for" another and 2) who is the responsible party for that action?

First, as they do in math, we have to establish the sign conventions (pun intended). The first party is CO1, Jane Doe, the absentee person, the one to be bound by the action. The second party is CO2, John Doe, the signer for.

Here are what bothers me. After vehemently and almost viscerally objecting to the very idea that CO2 could sign for CO1, Vern and crew seem to grudgingly admit that it could be done in limited circumstances (i.e., John signing Jane's name), with CO1 even remaining the responsible CO, and CO2 not being obligated to do an independent check.

First, the method seems wrong. When you sign "for" someone, you sign your own name, not the other's, and put "for" and sometimes your authority (like "attorney in fact"). The absentee's name (person to be bound, Jane) is typed or printed on the signature block. Signing someone else's name is usually called something else. Look at how powers of attorney are done. They are used for transactions at least as important as contracts, and the signer, John, signs his own name, and Jane, the absentee is bound.

Second, if you accept those limited circumstances, then why maintain that John signing John's name is wrong? What is the difference? Is it because someone might be confused by who is really responsible? No, because that's the standard legally accepted method. Is it because the name that appears in cursive becomes the responsible party? That's just silly. Yet what other reason is there for the difference?

Now the other thing that bothers me. Most of the vehement objection was based on pages of high-flying reasons of authority, responsibility, delegation, crossing organizational boundaries, public trust, obligating money, etc., all of which seemed to miss the forest for the trees. The issue seems just to be the legal effect of a "for" signature. In other words, did the act operate is John's signature or Jane's, and could John be responsible? Again, look to powers of attorney. Several years ago I did a house closing for my father-in-law. I signed my name, "for", printed his name, and "attorney in fact." There was no way that I was going to be bound as the responsible party. It was his house, his loan, his name on the title. I did not independently verify anything about either the house or his financial status. No mortgage company could have come after me. In short, as far as the law was concerned, he signed the papers, not me. I was a pen.

Same here. Shouldn't the result be that as far as the law is concerned, Jane, CO1, the absentee signed the document? For those who cited the FAR or any other authority to say that the CO has to sign the contract, then Jane did. It was her act of executing the document.

A side point: Ron asked for examples of a "signing for" party (John, CO2) ever held responsible instead of Jane, CO1. The responses were all off mark. Martino didn't cut it, and neither did the pages of talk about COs being held responsible. They all signed their own actions! We need an example of a "signing for" getting in trouble for that act.

This is long enough. I haven't decided in my mind yet whether signing "for" is OK in government contracts, but I haven't seen anything yet that sufficiently disproves that it can't act as the legal signature of the first party. (spare me any further discussion of the legal definition of a signature. It is firmly established that the party to be bound never has to make a mark. He/she can adopt another mark as his/her signature. Letterheads can suffice. Look it up).

By joel hoffman on Tuesday, February 11, 2003 - 10:28 am:

ConAnon,

There is a difference. Someone cannot sign their name "for" someone else above the other person's signature block on a contract or mod. A KO can only take action under their own appointed authority.

What has been said is that, with proper authority from the KO, someone can sign the KO's name on the contract or mod. In that case, the KO intends to be responsible for the action. Nobody is signing their own name "for" the KO.

Those should be pretty simple concepts.

happy sails! Joel

By amused on Tuesday, February 11, 2003 - 11:18 am:

I think if I was away and Mr. Waffle signed a contract document "for" me, my first defense would be that I was not the KO of record and I was not responsible for the document Mr. Waffle signed. I think, but can only say with about a 90% certainty, that a court would allow me that defense and would hold Mr. Waffle responsible. Is there a lawyer in the house? If yes, what do you think?

By joel hoffman on Tuesday, February 11, 2003 - 11:26 am:

Years ago, our Area Engineer was appointed as Contracting Officer's Representative to approve shop drawings for each contract to construct the Tenn-Tom Waterway. He purchased a stamp with his signature, name and title on it. He instructed my boss to review all the shop drawings, to assign the proper review code and to stamp his signature on the shop drawings and official transmittal. He decided to take the responsibility for anything we stamped. Fortunately, because we knew the contract requirements (and we verified any review comments from others against the contract requirements), we didn't get him into any kind of trouble. But, we used his signature stamp and title.

I know of no instance where anyone signed or stamped a KO or ACO signature on a contract or a mod. The acting KO/ACO signed their own name on the action (the KO added a note to the action that they were the acting KO in the absence of the regularly appointed KO). happy sails! joel hoffman

By Eric Ottinger on Tuesday, February 11, 2003 - 11:37 am:

Joel,

I would distinguish the authority to give technical direction from the authority to execute a contract or a modification.

Eric

By joel hoffman on Tuesday, February 11, 2003 - 11:45 am:

Eric, I Agree, although it was done the same way. The name of the person held accountable for the action under a contract was used. I have a hard time understanding why that concept, in the context of a contract action, isn't clear. Guess I'm just used to operating under that scenario. It never would have occurred to us to sign our names "for" someone else with assigned or delegated authority on a contract action. happy sails! joel

By Ex-ACO on Tuesday, February 11, 2003 - 12:34 pm:

As a former ACO with DCMC (now DCMA), I had an ACO stamp that I used to sign orders, mods, cost vouchers, progress payments, etc. Every ACO in my organization did. We always left blank the ACO's name and title blank so that we could use our own stamp when it was time to sign. This issue about signing "for" another ACO never came up for that reason. I'm sure there was something in the DLAM years ago that discussed the proper use of ACO stamps or the ACO's signature, but I'm not in DOD anymore and can't research that reference. Are there any DCMA ACO's out there that that still have the DLAM for Contracts and could search for this subject? I don't think this subject is even discussed in the DCMA One Book.

By Ron Vogt on Tuesday, February 11, 2003 - 07:21 pm: