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Can one Contracting Officer sign for another Contracting Officer?  (Part 3)
By Eric Ottinger on Wednesday, February 12, 2003 - 12:12 pm:

Anon31Jan,

One person can sign for another person. There is law and precedent to that effect. Also, an agent can sign for the United States.

Saying that an agent can sign for an agent signing for the United States doesn’t compute.

Joel,

Your argument may be as good as mine. I set my scenario up so that Waffle was signing “for” in the sense that he had done nothing in the way of an independent determination. He just proceeded on what he understood that Susie intended to do. This is not quite the same thing as saying that Waffle relied on Susie as his eyes and ears.

In the Impresa case the CO relied on input from his selection board and input from his legal counsel. Nevertheless, the “contracting officer failed to make an independent and informed integrity determination…”

US-FED-CLAIMS, Impresa Construzioni Geom. Domenico Garufi v. United States, (May 03, 2002)

…”The contracting officer relied on the technical evaluation board’s recommendation without making any independent inquiries about the responsibility of the offeror…”

“Because he lacked sufficient information to be in a position to make the assumptions that he did and because he failed to make an affirmative assessment of JVC’s responsibility, the court cannot find that the contracting officer conducted a reasonable responsibility determination. …”

If I understand Impresa correctly, the CO didn’t just make a bone-headed decision because he relied on his evaluation board, he was considered not to have made an acceptable affirmative determination at all.

The fact that I was being pressured and the indication that Megahype was having problems with a bank would be enough to make me cautious and curious. Waffle did get some warning.


With all due respect folks—

Why does anybody think that finding the stuckee is the answer to a question. Waffle is going to be held responsible by the agency head, the newspapers, the IG, and his mother-in-law. Lawyers on either side are very likely to defame him. He is going to take early retirement, and constantly repeat the wise words of a former president, “Life is not fair.”

Eric


By joel hoffman on Wednesday, February 12, 2003 - 12:38 pm:

Eric, Waffle will probably be promoted! Seriously, though, I don't think I said that what Waffle did was "correct". At any rate, the Impresa Costruzioni Geom. Domenico Garufi v. United States case was a bid protest, regarding the appropriateness of the source selection descision. I didn't see anywhere where the contract was nullified. If the selection decision was faulty, corrective action could result in a termination - but the there is still a contract. I think that was your question. happy sails! joel


By Ron Vogt on Wednesday, February 12, 2003 - 12:57 pm:

AnonJan31, just to clarify, I don't think anyone assumed your second scenario, i.e., that Jane did not authorize John's signing for her. In fact, your original question states that she gave her permission. My assumption all along has been that she authorized it, and the questions were whether John could sign, and how. If Jane never authorized it, John's action is obviously wrong and no theory or method advanced by anyone here would have made it OK.


By Anonymous on Wednesday, February 12, 2003 - 01:15 pm:

But does Jane have the authority to authorize John to sign for her.

I don't know about anyone else but my warrant was issued to me from headquarters with no authority to further delegate MY CO authority.


By Eric Ottinger on Wednesday, February 12, 2003 - 01:20 pm:

Joel,

In Impresa the court found that there was no affirmative determination of responsibility as required by the FAR. It was my inferrence that the lack of this “shall” would effectively void the contract. You are correct that this was not the issue that the court decided.

I think that Waffle is the very much the model of the new customer oriented, business sensitive, no longer risk averse contracting person. If it were not that the agency head is looking for a stuckee, I am sure that he would be promoted. If the circumstances were exactly the same, I think (I hope) I would call Susie at home before I actually signed the contract in her place. Courtesy would seem to require that much, and she might know something I didn’t know. Otherwise, I would admit that I put Waffle in a very tight box and that he took only a very small risk, which as sometimes happens with small risks, turned into a disaster.

Eric

By AnonJan31 on Wednesday, February 12, 2003 - 03:48 pm:

Ron, you're right. My original question was regarding Jane Doe expressly authorizing John Doe to sign "for" her. But scenario #2 that I described above is the same one as Waffle signing "for" Susie without Susie's consent or knowledge.


By joel hoffman on Wednesday, February 12, 2003 - 04:35 pm:

AnonJan31, from my reading of the scenario, Waffle technically did not sign his name on the contract "for" Susie without Susie's consent or knowledge. Waffle signed the contract with the full intent to sign his name as the PCO.

However, Waffle's secretary misinterpreted Waffle's unclear instructions to "fix" the signature box on the contract. She mistakenly thought his instructions were to show Waffle signing "for Susie" over Susie's name and title.

Do you see the difference between that scenario and your "scenario #2?"

In Waffle's case, had the Contractor not skipped the country, all Waffle would have had to do was issue an admin mod correcting the typed name on the contract to his instead of "for" Susie.

In your scenario #2, there is a bigger problem to be resolved.

(I actually had a contractor skip the country, once, after he realized that he was going bankrupt on a critical navigation lock guide wall repair project. The Government should have never awarded the contract to this character, a tiny contractor. The work was on an active river navigation lock, involving under water and above water repairs in a dangerous current. His bid was 1/2 the Government estimate and less than 1/2 of the next low bid. We knew he was in trouble when he towed in his work barge with his personal ski boat!) happy sails! joel


By Ron Vogt on Wednesday, February 12, 2003 - 09:06 pm:

Yes I am from the industry side. However I have worked in government contracts for over 10 years, albeit not from inside the government.
When I put up a comment, it's either to add something that I have specific experience in, or to throw in new ideas or challenge assumptions. Too often the answer has been simply "that's the way the government does it." But in this very discussion the answer has gone from "no way in hell" to "well maybe if it's done this way...." I'd like to think I contributed to that.

Acquisition is changing and the government is commercializing. The courts and boards look to the UCC for guidance in their decisions. On Jan 30, a proposed FAR change was published that would eliminate even more laws from commercial item purchases. The GDP is several times larger than government spending, so the commercial world must know something about contracts. If something is unique to government contracts and is required by law or regulation, that's fine, but please cite the FAR or point to a case. Inquiring minds want to know. And don't dismiss ideas from the commercial world as too outlandish to consider. It may be in the FAR next year!


By Eric Ottinger on Thursday, February 13, 2003 - 12:15 pm:

Ron,

On most days I would agree with most of what you say. In this case you are arguing with a fundamental principle.

A contracting officer is an agent signing for the United States Government. Period. That's it.

Eric


By Kennedy How on Thursday, February 13, 2003 - 12:26 pm:

Actually, I think the printed name and title on the face page of the contract is for the benefit of others who may not be able to make out just WHO signed the contract as KO. We all have seen the proverbial "Doctor's Handwriting"; if you had a signature like that on a document, and you are the receiving party, your first question may well be "Who the heck signed this?"

When I was in high school, I was sorta able to forge my Physics teacher's signature. Mainly because it consisted of a very sloppy first letter followed by a straight line, the last name being in the same format. If you didn't know who it came from, you'd never be able to figure out the name.

I also remember one person who's signature was a just a bunch of up-and-down lines. That was his valid signature. He had lots of problems in banks and such where signatures rule.

The point here is that you can type in Jane Doe in the typed name block, and somebody could do the up-and-down thing, and nobody would really be the wiser if you were external to the agency. Internally, of course, you'd know, because there would have been the pattern to match up who that person was.

For what it's worth, I take that approach when I write a business letter to somebody; I always have a typed name and address underneath where I sign, so that if they can't read my sloppy handwriting, they can at least see the typed name.

Kennedy


By amused on Friday, February 14, 2003 - 10:05 am:

It all makes one wonder why we still put so much faith and trust in these squiggles. Reality is both amusing and sad. I remember chuckling during one of those network "newsines" about follow-up on an investigation about signatures on checks.

Part of their test of the system the banks were to have corrected involved sending checks through accounts the network had opened with Daisy Duck, Mickey Mouse and such as signatures. The checks cleared. No comparison was ever made. No human ever looked. The machines read the imprints and ignored the scribbles. Then I started thinking about how we trust that somehow this method of commerce has some validity. Instead, the emperor has no clothes and not much attention is being paid.

All that makes me wonder if the technique of digital "signatures" is not a more sound approach. Then I remember all those who ignored security instructions and did write down passwords and safe combinations. Are we really putting much thought into how we authenticate that an authorized individual actually approved any specific action?


By Vern Edwards on Friday, February 14, 2003 - 10:47 am:

I go out of town for a few days and look what happens.

The issue is this: Can one CO, at the request of another, sign his or her own name on a contract and escape personal responsibility for compliance with FAR § 1.602-1(b) by typing the other CO's name and title under his or her signature, thus signing "for" the other CO? The answer is no.

Different issue: Can a person (whether a CO or not), at the CO's request, inscribe the CO's signature over the CO's own typed name and title, without taking any personal responsibility for compliance with FAR § 1.602-1(b)? The answer is yes.

If you cannot see the difference between the two cases, then you cannot be helped.

ConAnon, whoever you are, you wrote: "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."

You appear to be one of those who cannot be helped. You appear not to have read this long thread very carefully and not to understand the issues. One person inscribing another's signature at the other's request is very different from signing one's own signature and then claiming no responsibility. Get it? Don't bother to answer. You either do or you don't.

I still vehemently and most viscerally object to the notion that John Doe, Contracting Officer, can inscribe his name on a contract and yet accept no personal responsibility for the consequent contract award.


By Ron Vogt on Friday, February 21, 2003 - 09:27 pm:

I haven’t checked in here for awhile, frankly because it hasn’t been too pleasant. I also realize that I open myself up to further punishment by posting again, but heck, like a moth drawn to a flame.... Nevertheless, I was still bugged by the comments so I did a little research on the issue.

The Supremes came through.

First, recall that the issue was whether another person can sign for the CO, not whether it is advisable or good practice. Objections based on the latter are valid and I have no complaint with those. Objections based on the legal consequences of signing for another cited delegation problems, the FAR requirement that the CO sign the contract, and other reasons. All very heatedly rejected the idea that it could simply have the legal effect of the first CO's actual signature in the absence of that CO.

Now the cases: the first is Union Twist Drill Co. v. US, 59 Ct.Cl. 909 (1923). Contracting Officer was COL Thomas Slavin. The contract bore Slavin’s name and designation, but the contract was signed by John Holt, signing Slavin’s name “pursuant to [Slavin’s] direction”, followed by Holt’s printed name. The Court referred to this as a “proxy” signing and stated: “Under the facts stated the affixing of the signature of the contracting officer by another, duly authorized, creates no infirmity in the execution of the contract.” In the statement of the facts at III, the Court found that the “contract was executed and delivered on behalf of the United States by Thos. H. Slavin….”

What can we glean from this? The contract was physically signed by Holt, but the Court called this a “proxy” signing and said it was executed by Slavin, not Holt. This sounds like the proxy signing had the legal effect of the absent CO signing. Now in this case the stand-in signed the CO’s name, not his own, which is what Vern suggested was the only acceptable way to do it (more on this later) but it also doesn’t have the other strict limitations Vern placed on that one method.

Next, the Supreme Court: US v. Swift & Co., 270 U.S. 124 (1926). The officer with contract authority was BG A.D. Kniskern. Gen Kniskern’s signature was made by 2LT O.W. Menge. The case doesn’t say so but I think we can safely assume that the General did not delegate his authority to a 2LT. Besides, the complaint by the other side must have only been to the effect of the signature; otherwise there would have been a discussion of whether the delegation had been proper. The Court stated: “It is evident from subsequent correspondence the Gen. Kniskern recognized this as his signature and as a binding contract. There seems no doubt about the authority of Lieut. Menge to attach his signature or that it was the regular practice in the office.” The Court then cited Union Twist Drill.

So again we have a proxy signing by another instead of the actual authority, operating as the signature of the one with authority. Very short and simple, no discussion of delegation of authority or responsibility. It simply operated as the General’s signature. It was also “the practice of the office” not a delegation of authority.

Finally we have Int’l. Arms & Fuze Co., v. US, 76 Ct.Cl. 424 (1932). Slight but important variation here: the CO’s name, COL McRoberts, was only typewritten in, but the signature was that of LTC Lamont, who was authorized by COL McRoberts to sign “in the contracting officer’s name.” From that we can assume that LTC Lamont did not have independent or delegated authority, or the issue would have been that, not a proxy signing. In a discussion of the applicability of the Dent Act, the Court called this a proxy-signed contract, and cited Swift in stating that this was a validly executed contract. Now we have a valid proxy signing by a person signing his own name, not the name of the person with authority.

So where does that leave us? I think these Courts have recognized the simple principle that a legal instrument can be signed by a second person in the absence of the first and have it operate as the signature of the first. They call it a proxy signing, not a delegation or a power of attorney. It’s just the first’s signature; nothing more, nothing less, and it works whether the 2d person signs his/her own name or the CO’s.

Now I’m a realist. I know that the objections will be fast and furious, so I’ll answer a couple up front. Yes these cases are old. However they have not been overruled or distinguished. Besides, Marbury v. Madison is old too, by at least a century more.

Second, there may be statutes or regs passed since then that specifically require the signature of the actual person to be responsible for the contract. If so, please cite it. I asked for it before and it was brusquely dismissed as too obvious to bother answering. Now, you either have to cite some authority or accept these cases. Please don’t cite FAR 4.101 as proof that the actual CO’s signature is required. These cases say that the signature of the 2d person IS the CO’s signature. In other words, if the question of a signature came up today, what would be the response to these cases?

Next, have I misread these cases? Always a possibility, but I don’t think so. In all three cases it is pretty clear that the person affixing the signature was not the CO and was not delegated any CO authority, and all three Courts recognized the signature as that of the CO, not the signer, though the CO did not touch the paper.

Finally, don’t read more into my words than there is, and claim that I am advocating this as an acceptable practice. I am not and it is not, for many reasons. Vern, you are still perfectly entitled to reprimand and then fire your CO for doing this against your instructions. My point in raising these cases (besides reclaiming respect) is to make the point that was so, ahem, politely, rejected: that a signature for another can be done, and operates as the signature of that other, not the signer. Furthermore, it happened in the world of government contracting, not commercial.

Even if there has since been a specific statute passed, these cases show that the concept of signing for another on a government contract did exist, and was validated by the Courts. It is not so outrageous that it deserved the reaction it got. If that concept belongs in another dimension, then at least I’m in good company.

And if I have missed something in my reading of these cases, then I’ll just continue my flight into the flame.


By Vern Edwards on Saturday, February 22, 2003 - 02:43 am:

Ron:

You have wasted a lot of time.

In the case of John Doe inscribing Jane Doe's's signature with Jane's permission, the subject of the first two decisions you cited, I have already said that was valid. I have said it several times.

As to your discernment of some kind of "proxy" principle in the Union Twist case, I'm afraid that you're seeing ghosts. Here's what the court said:

"The parties, the plaintiff by its attorney of record and the defendant by Robert H. Lovett, Assistant Attorney General, have stipulated the facts and the findings are in accordance with the stipulation. The defendant concedes a right of recovery in the plaintiff but questions its right to recover as for a breach of the contract on the ground, as stated in argument, that the contract was 'proxy signed.' The contracting officer was Thomas H. Slavin, colonel, Quartermaster Corps, and the contract bears his name at the end thereof with his official designation, followed by the words, 'John R. Holt, Captain, Q. M. R. C.' Finding III, following the stipulation, states that 'Said contract was executed and delivered on behalf of the United States by Thomas H. Slavin, colonel, Quartermaster Corps, whose name was signed to said contract by John R. Holt, pursuant to his direction.'"

That's it. You have badly misread Union Twist. That case did not establish any kind of proxy principle. So, to the extent that you have found some significance in that "proxy" terminology, some general principle, in any of the cases that you cited, I fear that you are doomed to be disappointed.

In the case of contracting officer John Doe signing his own name over contracting officer Jane Doe's typewritten name, the subject of the third decision you cited, I haven't said that such a signing would not result in a valid contract. The validity of the contract has not been the issue. The issue has been which CO would be responsible for compliance with FAR § 1.602-1(b) -- the one who signed or the one whose name was typed on the document. My position is that the person who signed would be responsible, not the person whose name was typed onto the document.

Now here is what the Court of Claims said in the third case, the one that you are so excited about, International Arms & Fuze Co., 76 Ct. Cl. 424:

"The contract purported to be made on behalf of the United States by Samuel McRoberts, colonel, Ordnance Department, as contracting officer. The name of Colonel McRoberts appeared at the end thereof only in typewritten form, but the contract was signed in writing by Robert P. Lamont, lieutenant colonel, Ordnance Department, National Army, who at the time of signing was by the Chief of Ordnance duly authorized to sign in the contracting officer's name."

That's it. That's all that the court said. The procedure was not an issue in the case. The court simply related the fact that the Chief of Ordnance told Lt. Col. Lamont that he could sign over Col. McRoberts' typewritten name. In other words, the Chief of Ordnance permitted Lamont to do what AnonJan31's office was allowing his contracting officers to do. Big deal. We already knew that some offices permit it; there's been no question about that. The question that we have been asking is who is responsible for compliance with FAR, the signer or the person whose name was typewritten. The court did not address itself to that question; it merely related the fact.

So, yes, you missed something in your reading of those cases -- you missed their irrelevance to the issue at hand. One reason for this may be that you are not addressing the argument that I've been making. But I have explained it to you so many times that it seems pointless to explain it to you again.

Aside from their irrelevance, the courts' decisions were made in 1924, 1926 and 1932, long before there was a FAR, or a DAR or an ASPR, for that matter. Do you know what regulations addressed contracting officer responsibility in those years? Do you know what they said?

Think of all this as lime sprinkled on your horse's corpse. It wasn't a very good horse, but you loved it so we shouldn't let the coyotes get at it. I'm glad that you're reading decisions, Ron. That's a good thing, even if you haven't made your case. In order to do that you need to show that John Doe, by signing his own name over the typed name of another person, can thus evade personal responsibility for compliance with FAR. You haven't done that.

Keep at it, though. I'm on the road and my hotel room would have been lonely tonight without you.

Vern


By Vern Edwards on Saturday, February 22, 2003 - 02:51 am:

Ron:

P.S. In International Arms & Fuze Co., the court did not call the contract proxy-signed; the plaintiff did. Here's the quote in its entirety:

"There is considerable discussion in the briefs as to the effect of the Dent Act of March 2, 1919, 40 Stat. 1272, which authorized the Secretary of War to award compensation for expenditures connected with the prosecution of war when made upon the faith of an agreement, express or implied, entered into with an officer or agent acting under the authority of the Secretary of War or the President when such agreement was not executed in the manner provided by law. It is agreed on all sides that the contract involved in this case was a formal contract executed according to law. Swift & Co. v. United States, 270 U.S. 124. Plaintiff insists, however, that the provisions of the Dent Act were intended to apply in case of a proxy-signed contract and that the authority conferred by that act upon the Secretary of War is in addition to the authority possessed by him under the law relating to contracts formally executed. We are of opinion that the Dent Act has no application in this case. It was intended to remedy irregularities and informalities in the mode of entering into agreements to which it related. It did not enlarge the authority of the agents by whom the agreements were made. Baltimore & Ohio R.R. Co. v. United States, 261 U.S. 592. The Dent Act was not intended to change, enlarge, or modify contracts that were duly executed in writing."

I have no idea what you think this has to do with what we've been talking about.


By Vern Edwards on Saturday, February 22, 2003 - 11:05 am:

Ron:

I don't know what access you have to GAO decisions, but you might want to read the short July 28, 1937 letter from the Acting Comptroller General to the Secretary of Agriculture, entitled, "Contracts - Signature by Proxy." If you can't get it, send me an email and I'll send you a copy.

The Secretary of Agriculture had written to the Comptroller asking for approval of a procedure whereby the "procurement officer" and the "distribution officer" would designate certain persons in the office to sign "for and on behalf of those officers."

The Acting Comptroller General disapproved. Here's the pertinent quote (the all caps format is in the original):

"THE LAW CONTEMPLATES AND REQUIRES PERSONAL RESPONSIBILITY OF OFFICERS AND AGENTS FOR THE PERFORMANCE OF THEIR DUTIES ON BEHALF OF THE UNITED STATES. SEE SECTION 35 OF THE CRIMINAL CODE OF MARCH 4, 1909, 35 STAT. 1095, AS AMENDED BY THE ACT OF OCTOBER 23, 1918, 40 STAT. 1015 (U.S. CODE, TITLE 18, SECS. 80, 82, 83, 84, AND 85). WHILE UNDER SECTION 3744, REVISED STATUTES, THE SECRETARIES OF WAR, NAVY, AND INTERIOR DEPARTMENTS HAVE CENTERED IN THEM THE RESPONSIBILITY FOR CONTRACTING FOR THEIR SEVERAL ACTIVITIES, THEY ARE AUTHORIZED TO DESIGNATE CONTRACTING OFFICERS TO SIGN ON BEHALF OF THE UNITED STATES... . CERTAIN PROXY-SIGNED CONTRACTS DURING THE WORLD WAR RAISED MANY DISPUTED QUESTIONS EVEN AFTER THE ENACTMENT OF THE ACT OF MARCH 2, 1919, 40 STAT. 1272, AND IN VIEW OF THE TERMS OF THE LAW THIS OFFICE WOULD NOT BE JUSTIFIED IN APPROVING A PROCEDURE NEGATIVED IN THE DECISION OF OCTOBER 6, 1936, FOR THE DESIGNATION OF A NUMBER OF EMPLOYEES TO CONTRACT FOR THE CORPORATION ON BEHALF OF THE CHIEF OF THE COMMODITIES PURCHASE SECTION THEREOF OR ANY OTHER OFFICER OR EMPLOYEE OF THE CORPORATION. THE OFFICER OR EMPLOYEE WHO ACTUALLY MAKES OR NEGOTIATES THE CONTRACT IS THE ONE WHO SHOULD SIGN IT AS THE CONTRACTING OFFICER.

"YOU ARE ADVISED ACCORDINGLY."

Underlining added.

Any questions?


By John Ford on Saturday, February 22, 2003 - 03:41 pm:

Vern, from the quote you have provided, I think your reliance on this CG opinion is misplaced. The decision appears to be addressing the requirements of a specific law, not a contracting principle in general. Also, the underlined portion merely says "should" sign, not "must" sign. As such, it does nothing more that state a general preference with which there should be little disagreement.


By Vern Edwards on Saturday, February 22, 2003 - 04:48 pm:

John:

I think you are wrong. (I'm curious -- have you read the entire decision?) What "specific law" would that be? Please cite. Try to be a little more specific than you usually are in your Saturday hit and run posts.

The Secretary of Agriculture asked the Acting Comp. Gen. for "clearance" to use the proposed procedure. The Acting Comp. Gen. said that he would not approve of the procedure. As for the use of "should" instead of "must," I see that as no different than the Comp. Gen.'s "recommendation" at the end of a sustained protest. We all know that the Comp. Gen.'s decisions are not binding on the Executive Branch. I cite this decision (a) to show that Ron's reliance on some proxy principle was unfounded and (b) in support of the proposition that the person who signs is the one responsible for compliance with FAR. I think I am being quite reasonable in referring to the Acting Comp. Gen.'s letter. My reliance on this decision is no different than relying on GAO "case law" to determine the rules about discussions in source selection.

Stop trying to be an agent provocateur, John.

Vern


By John Ford on Saturday, February 22, 2003 - 05:48 pm:

Vern, in answer to your questions, no I have not read the entire decision. That is why I qualified my statement by simply referring to the quote you provided. As for the "law," the quote is not quite clear on what law it was referring to when it says "in view of the terms of the law." By its placement, this phrase could apply to 40 Stat. 1272 or the sections of title 18 referenced earlier, which do not exist today, although their substance may be in some other sections.
I understood the purpose behind your citation to this opinion, and I understand your position in the ongoing debate. I simply think you have placed too much weight on this quote (I take no position on the entire letter). You think your reliance is reasonable and I do not believe it establishes the point. Thus, we have another difference of opinion.


By Vern Edwards on Saturday, February 22, 2003 - 08:28 pm:

John:

Okay, but in fairness to me, precisely what reliance do you think I have placed on the quote? I merely quoted it and asked Ron if he has any questions. What else did I say?

My entire point is that the notion that one contracting officer can sign his name on a contract over the typewritten name of another and thereby evade responsibility for failing to comply with FAR § 1.602-1(b) is unsound. Talking about "the law," as mentioned by the Acting Comp. Gen., consider 18 U.S.C. § 435, which says:

"Whoever, being an officer or employee of the United States, knowingly contracts for the erection, repair, or furnishing of any public building, or for any public improvement, to pay a larger amount than the specific sum appropriated for such purpose, shall be fined under this title or imprisoned not more than one year, or both."

Now, suppose that Jane Doe negotiates the contract and prepares the file, but asks John Doe to sign his name over her typewritten name and title, and suppose that the contract price exceeded the specific sum appropriated. Who is responsible? Is John going to be able to avoid trouble by saying that Jane is the culprit, even though it was his signature, not Jane's, that committed the government to pay?

Or, how about 18 U.S.C. § 432, which says:

"Whoever, being an officer or employee of the United States, on behalf of the United States or any agency thereof, directly or indirectly makes or enters into any contract, bargain, or agreement, with any Member of or Delegate to Congress, or any Resident Commissioner, either before or after he has qualified, shall be fined under this title."

What if Jane has negotiated a deal with some company in which a congressman has a controlling interest and John signs his name on the contract over Jane's typewritten name. Whose signature formed the contract, Jane or John?

As the Acting Comp. Gen. pointed out, and as these current statutes demonstrate, "The law contemplates and requires personal responsibility of officers and agents for the performance of their duties on behalf of the United States... . The officer or employee who actually makes or negotiates the contract is the one who should sign it as the contracting officer."

The law doesn't say that in the event of a violation agency head should receive a nasty letter. It says that the offending "officer or employee" "shall" (not should) pay a fine or go to jail! Gosh, John. A word to the wise ought to be sufficient. Yes, I think my reliance is reasonable and establishes the point.

What does it take for you?

Vern


By Anonymous on Saturday, February 22, 2003 - 09:58 pm:

How about both Jane and John going to jail and their supervisor and agency head being fined for engaging in such a farce? J

Seriously. The point here is obfuscation of individual legal responsibility when people are confusing the audit trail. That is why there is no problem in John siging Jane's name by her authority and there is if he signs his name over her imprinted one. I simply cannot understand why this argument continues.


By Anonymous on Monday, February 24, 2003 - 04:40 pm:

Here is a link for the Swift case.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=270&invol=124


By Anonymous on Saturday, March 01, 2003 - 02:07 pm:

So in Int'l Arms & Fuze, even though the case lists COL McRoberts as the CO and talks like he is the CO, LTC Lamont has to be the responsible party because he signed his own name, although for COL McRoberts?


By Vern Edwards on Saturday, March 01, 2003 - 03:32 pm:

I would say yes, under today's rules of contracting officer appointment and responsibility.

Here is how the court described the signature:

"The contract purported to be made on behalf of the United States by Samuel McRoberts, colonel, Ordnance Department, as contracting officer. The name of Colonel McRoberts appeared at the end thereof only in typewritten form, but the contract was signed in writing by Robert P. Lamont, lieutenant colonel, Ordnance Department, National Army, who at the time of signing was by the Chief of Ordnance duly authorized to sign in the contracting officer's name."

That is all that the court had to say about the signing of the contract. The procedure sounds very like the procedure which AnonJan31 described at the very beginning of this thread. One person signed his name "for" the another person, whose name was typed on the contract.

I don't know what the Army Ordnance Department's contracting rules were in 1918, when the contract was signed. However, I have a copy of the Manual for the Quartermaster Corps, United States Army, 1916. It says, at Article 942:

"Contracts will be made in the name of, and will be signed by the chief of bureau to which the contracts pertain."

Article 943 says:

"Contracts may be made by quartermasters serving under the jurisdiction of department commanders for supplies and services other than personal, where the same have been designated by proper authority to be secured under such contracts. The contracts will be made under the direction and supervision of the department commander, who will scrutinize them carefully as required by paragraph 751, Army Regulations, 1913, but will not be made subject to formal approval. The authority to make such contracts is subject to the proviso that the apportionments and allotments made for these supplies and services will not be exceeded."

The court decision does not tell us who negotiated the contract -- Col. McRoberts or Lt. Col. Lamont. I cannot tell from the court's decision whether Col. McRoberts did the work and then had Lt. Col. Lamont sign while he was away, or whether Lt. Col. Lamont was actually a contracting officer himself. It may be that all such contracts were made in the name of a senior officer but signed by the officer who really did the work and was "duly authorized to sign contracts." It may be that the commander was always "the contracting officer," but authorized subordinates to do the work and sign in his name. I may have missed it, but I can't even tell if Col. McRoberts was the Chief of Ordnance who authorized Lt. Col. Lamont to sign or if the Chief of Ordnance was Col. McRobert's boss.

In short, I can't reach any conclusion based on the limited information in the court decision. I frankly don't think that decision has much if any bearing on the issue that we have been discussing.


By Vern Edwards on Sunday, March 02, 2003 - 11:54 am:

I was rummaging around in my garage this morning and found a box that I hadn't opened in months (years?). Guess what I found: Regulations for The Army of the United States, 1913. These are the regulations mentioned in the Manual for the Quartermaster Corps, United States Army, 1916, from which I quoted above. Here is some language pertinent to our discussion of Int'l Arms & Fuze.

Article L, Purchase of Supples and Engagement of Services, General Provisions, ¶ 520: "An officer charged with the duty of making a contract or purchase is responsible under the laws and regulations for his actions."
Article L, Contracts, ¶ 556: "Contracts will be made in the name of, and will be signed by, the officer designated by the chief of bureau to which the contracts pertain."

Article L, Contracts, ¶ 557: "Contracts may be made by quartermasters serving under the jurisdiction of department commanders for supplies and services other than personal, where the same have been designated by proper authority to be secured under such contracts. The contracts will be made under the direction and supervision of the department commander, who will scrutinize them carefully as required by paragraph 751, but will not be made subject to formal approval."

Article L, Contracts, ¶ 558: "Purchasing officers of the several staff corps and departments, who are under the direct supervision of the chiefs of their respective bureaus, are authorized to make contracts for the purchase of supplies and for the engagement of services other than personal, without the approval of the chief of bureau, except in such specific cases as may be designated by the chief of bureau to be made subject to his approval, when such purchases of supplies or engagement of services is properly authorized."

The Army regulations do not contain any rules or guidance about the appointment of contracting officers and make no mention of "warrants," or "certificates of appointment," which leads me to believe that in the Army lingo of 1913 a "contracting officer" was simply a military officer who entered into a contract. It does not appear to have been the specialty position that it is today. There is no indication that Army civilian employees could be contracting officers. There is nothing about "Contracts may be entered into and signed on behalf of the Government only by contracting officers." [FAR § 1.601(a)] If an Army officer was a chief of a bureau, a quartermaster serving under the jurisdiction of a department commander, or a purchasing officer of a staff corp or department, then he could make a contract.


By vasanum on Wednesday, March 12, 2003 - 12:37 pm:

I'm amazed, and as a tax payer and government employee ashamed that soooo much time has been spent by other government employees arguing, flexing intellectual muscle, and criticizing those less gifted, all over a relatively minor issue. Forgive me in advance as I know the intellectual heavy weights will give a thousand reasons why this discussion is sooo important and Bob will have to start a 4th iteration.


By Vern Edwards on Wednesday, March 12, 2003 - 02:17 pm:

vasanum:

If you're referring to my participation in any way, then you will be happy to know that I am not a government employee. Neither is John Ford. I don't know how you know who employs the various anonymouses, or any of the others for that matter. Do you know? As for the ones who may have indicated that they are government employees, do you know where they are located geographically? If not, then how do you know what time it is where they are? In the past few months I have posted from London, Florence, Rome, Singapore, Cambodia, Bahrain, Hanoi, Naples, and several locations in the U.S. The times on the posts are all D.C. time. If you don't know where the poster was, then you don't know whether they posted from work or from home.

By the way -- I don't think this discussion is important. Important is what makes money. I just like to argue.

Soooo, maybe you should withhold your criticisms until you know what you're talking about.


By ipaymyway on Wednesday, March 12, 2003 - 06:48 pm:

I agree with Vern. It's quite possible that you are the only government employee who has taken valuable taxpayer time to add comment to this thread. And I submit to you that you, vasanum, have just perpetuated the agony of this thread by waking it from its 10 day sleep. I'm not sure where you've been, but I for one wouldn't get my feelings hurt if you'd just go back to where you came from. Or just get back to work.


By Eric Ottinger on Wednesday, March 12, 2003 - 07:01 pm:

Vasanum.

I don't see anything trivial about the question that AnonJan31 asked. I just wish that we could give her a more definitive answer.

This is a long thread because we haven't found any convincing, simple answer, other than the fact that most of us (putting aside Anon's office
mates) are emphatically in agreement on this issue.

As for "arguing, flexing intellectual muscle, and criticizing those less gifted," that's human nature. We don't seem to be any more guilty than most of the committees that I have encountered.

The answer to your criticism is, "Please participate and set a better example." If the only thing that you have to offer is a carping criticism ....

As for the cost of this forum. It's trivial compared to the sums that we are spending for training, and I would say, a lot more productive dollar for dollar.

Eric


By Anonymous on Wednesday, March 12, 2003 - 11:01 pm:

Vern's March 02 post stirred me up, certainly not for the odd muddled reasons of "vasanum" or even the question of this thread. What struck me is how little attention the history of U.S. government contracting gets. I think we vaguely know something about tales of abuse and profiteering in Civil War days and see occasional brief pieces that make reference to particular turning points.

In addition to just being interesting to compare, a good history of the subject would be instructive. Those who do not know history are often doomed to repeat history's mistakes. Why was that Army system Vern mentions changed? Details would be helpful in considering changes to the current system. Does anyone know of such a review? Are there works on the subject with such an overview? I've not run across a consolidated overview of the history and issues of the subject.


By Vern Edwards on Thursday, March 13, 2003 - 08:15 am:

James Nagle wrote a history of government contracting, which went into a second edition. It is out of print but may be available at a university library.


By Anonymous on Thursday, March 13, 2003 - 11:55 am:

Thanks Vern. I see Mr. Nagle is featured at ESI (Instructor Q & A).

I got a chuckle out of #4: "The biggest contracting mistake I see is failure to read the contract. Many times people do not read the entire contract. They only read those portions that interest them, sign the contract and are later shocked by what is or isn't in there. Rather than admitting their mistake, the contracting parties will try to bluster their way through contract administration and wind up in court." [my emphasis--hmmmmm]

Seems that sort of thing is, in one way or another, a fairly frequent subject here on Wifcon.

I'll have to look for the book. For others, it is:

A History of Government Contracting
James F. Nagle
2nd ed.
Washington, D.C. : George Washington Universtity Law School, Government Contracts Program, c1999.
xx, 605 p. ; 23 cm.
ISBN: 093516569X (softcover)

From the DAU "roar'n" report it is what I was looking for. In times of reinvention, disdain for "old ways" or whatever, examining the "origin and development of contracting principles that govern public purchasing today" has value in avoiding that baby and bathwater syndrome. As we saw in recent accounting scandals, there just might be a reason for some silly old rules and regulations.


By Anonymous8 on Thursday, March 13, 2003 - 06:02 pm:

I do not consider contibuting to this forum a waste of the taxpayer's time. Often done at lunch or at home, but even if done during work hours, it is a form of professional development (in an environment where it is incredibly difficult to get time for training). I often see threads that point me where to look / research for issues I am working with.

The today's news section often has news that I pass on to policy or my boss.

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