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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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