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Authorities Delegated to COR

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The FAR states that a suspension of work may be issued by the contracting officer. Can this be delegated to a COR? Why or why not? If not, what about in a situation that involves health or safety? (e.g. actions of contractor are putting the life or health of an employee in danger).

FAR 1.602-2(d)(5) says that the COR "has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions"

So can the CO delegate anything to a COR that doesn't affect "price, quality, quantity, delivery, or other terms and conditions of the contract"? Not sure if a suspension of work order would qualify as affecting the delivery or some other term of the contract.

Thanks

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The FAR states that a suspension of work may be issued by the contracting officer. Can this be delegated to a COR? Why or why not? If not, what about in a situation that involves health or safety? (e.g. actions of contractor are putting the life or health of an employee in danger).

FAR 1.602-2(d)(5) says that the COR "has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions"

So can the CO delegate anything to a COR that doesn't affect "price, quality, quantity, delivery, or other terms and conditions of the contract"? Not sure if a suspension of work order would qualify as affecting the delivery or some other term of the contract.

Thanks

Normally anyone other than a KO would not order a "suspension of work" under the contract clause 52.242-14, "Suspension of Work" if it is due unsafe or hazardous activity by the contractor that is endangering employee(s). I would also advise against a KO citing that clause or the term even though the clause allows a suspension "for a reasonable period". Contract clause 52.236-13 "Accident Prevention" requires the contractor to plan and execute the work in a safe manner and not to endanger employees, the work or others. That clause authorizes the KO to direct immediate correction of unsafe conditions and to stop the job if necessary to enforce compliance.

Is this a construction contract?

If so, your organization should have some clear policy on who may direct that the contractor immediately cease the unsafe activity and direct the contractor to correct the safety deficiency under the Accident Prevention Clause. In our organization, that clause and other contract provisions require a safety organization, an accident prevention plan, activity hazard analyses and other safety training as well as adherence to OSHA and the Corps of Engineers Safety Manual. In the event of non-compliance or observation of unsafe acts, the COR and or quality assurance reps have the authority to direct compliance and to immediately cease the unsafe acts.

The SOW clause is usually used in my experience by the KO to suspend work for the convenience of the government, not to enforce safety, which should be enforceable by the COR under the AP clause.

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No disagreement with the information provided by Joel other than he has said "generally". . Agencies might exercise their own discretion in establishing policy as to what authorities CO may or may not delegate to a COR. A read of FAR 1.602-2 at (d)(5)might suggest that a suspend/resume cannot be issued by a COR yet determining what a COR can and cannot do demands a close read of agency policy, regulation (inclusive of agency supplement to the FAR) and the specific COR delegation letter provided by the CO.

By example the following rests within the USDA-Forest Service directive system….

Forest Service Handbook Contract Administration Handbook at 6309.11.34 ….

“Contracting officers, contracting officer’s representatives, inspectors, line officers, and program managers and other Forest Service persons with an interest in the contract must be able to recognize health and safety violations which present an imminent threat to health and safety and take immediate action. (An example is not using appropriate safety apparel and equipment.) This may mean immediately stopping the work and may also involve suspension of work. If the on-site Forest Service person also thinks OSHA or Immigrations and Customs Enforcement (ICE) issues may be involved, they shall promptly report the situation to the appropriate oversight agency. The contract administrator (CA) should then document the notification and the situation and ensure that either the CO or the COR receives the documentation.

Once the threat to health and safety no longer exists, the on-site Forest Service person should document the situation, notify the appropriate oversight agency and document that notification.”

No doubt this post might create further conversation in the thread with my intent being that sometimes there are specifics that need to be known as to why a question is asked so an accurate response can be provided.

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The FAR states that a suspension of work may be issued by the contracting officer. Can this be delegated to a COR? Why or why not? If not, what about in a situation that involves health or safety? (e.g. actions of contractor are putting the life or health of an employee in danger).

FAR 1.602-2(d)(5) says that the COR "has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions"

So can the CO delegate anything to a COR that doesn't affect "price, quality, quantity, delivery, or other terms and conditions of the contract"? Not sure if a suspension of work order would qualify as affecting the delivery or some other term of the contract.

Thanks

A suspension of work operates in conflict with the existing contract terms by design. For example, the contract says to perform construction and the suspension of work says to stop performing construction. That changes the contract. As such, FAR 1.602-2( d )(5) would prohibit a COR from issuing a suspension of work.

Further, FAR 1.602-5 ( d )(5) are the only limitations that I know of in the FAR regarding what can be delegated to a COR.

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I am in general agreement with Carl and Don, above.

Check your sgency's policy on what to delegate if you are a KO.

If you aren't the KO, in addition to checking policy ask your KO.

If this is a construction contract use and cite the Accident Prevention clause and any other contract safety provisions, not the Suspension of Work clause to enforce safety on the job. The AP clause provides the Government the reasonable right to stop unsafe activity without a contract adjustment for time and money.

I once ordered the removal of an employee from the job and from Columbus Air Force Base because he chronically failed to wear a hard hat and defied my order to wear it. The superintendent didn't argue and later thanked me for helping him get rid of that employee for cause. I reported it to my boss ASAP. We were two hundred miles away from the KO in Mobile and there were no cell phones back then. It was my first year as a Fed civilian employee. Everyone backed me up because job site Safety was and is priority one by policy.

Now days, with cell phones, you should be able to contact your supervisor and/or your KO in a heart beat. I would first direct correction then call if the situation poses an immediate life safety threat.

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P. S.: you should not be the KO or a COR on a construction contract without 1) having a clear safety policy and 2), not being aware of the authorities of government personnel in enforcing and encouraging safety.

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Deleted. Duplicate piost.

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I think we're sometimes too quick to jump to the Suspension of Work clause -- we should only use that clause when we're suspending work FOR THE CONVENIENCE OF THE GOVERNMENT.

If the contractor is doing something that could be dangerous to the public or Government personnel on a construction contract, the authority for the stop work order is the Accident Prevention clause (not the Suspension of Work clause) [note that interestingly, this is for danger to the public or Government personnel, not contractor personnel -- I suppose OSHA protects contractor personnel]. If construction, the authority to do what Joel did comes from para. ( c ) of the Material and Workmanship clause -- the contracting officer orders the contractor to remove a careless employee from the work under that clause, not a suspension. Whether construction or not, if the contractor's work doesn't meet specifications or otherwise runs afoul of the contract, we give the contractor notice of its non-compliance/non-conformance or a cure notice, not a suspension order. Anyway, I sometimes discern an over-eagerness to suspend the work under the Suspension of Work clause, and I try to discourage that over-eagerness.

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Question: CORs are frequently authorized to provide contractors with "technical direction". In practice, this is frequently translated into providing a contractor with instructions on how a specific work activity should or must be performed. In the absence of contract language which defines the methods of contract performance, is such instruction contrary to FAR 1.602-2 (d)(5)?

Question: The FAR defines "Contracting Offficer" as including "certain authorized representatives of the contracting officer acting within the limits of their authority as delegated by the contracting officer". Is a COR a contracting officer?

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EDITED on 11 Feb 2015. I should have been replying to ji20874's post #8 above, not Carl's post #3.

ji said, in part:

...If construction, the authority to do what Joel did comes from para. ( c ) of the Material and Workmanship clause -- the contracting officer orders the contractor to remove a careless employee from the work under that clause, not a suspension.

ji20874, technically, I removed him from the job site pursuant to the Accident Prevention clause because one must wear a hard hat on the site at all times while working. We were just past the end of the active runway overrun with planes flying overhead. He refused and dared me to do something about it. He also had no right otherwise than working on the jobsite to be on the restricted air base.

Our District did not delegate authority to remove objectionable employees under the Material and Workmanship clause. That was reserved for the KO. That was true in 1981 as well as a later situation o/a 1994 and it was in our contract admin manual as well as taught in USACE training classes.

ALSO, I will respond to something else that ji said in his post #8:

...[note that interestingly, this [referring to the Accident Prevention Clause] is for danger to the public or Government personnel, not contractor personnel -- I suppose OSHA protects contractor personnel].

ji, I disagree. Since I couldn't find a general or specific FAR definition for "public", I will say that the AP clause uses the common dictionary definition for "public" to distinguish between the general public - including the Contractor - and the Government , when referring to "personnel, property, materials, supplies, and equipment exposed to Contractor operations and activities".

See the first and last lines in the definition of "PUBLIC" at Black's Law Dictionary Free Online Legal Dictionary 2nd Ed.:

Pertaining to a state, nation, or whole community; proceeding from, relating to, or affecting the whole body of people or an entire community...A distinction has been made between the terms "public" aud "general." They are sometimes used as synonymous. The former term is applied strictly to that which concerns all the citizens aud every member of the state; while the latter includes a lesser, though still a large, portion of the community. Law Dictionary: What is PUBLIC? definition of PUBLIC (Black's Law Dictionary)

The term "general public" is used in DFAR clause 252.223-7002 Safety Precautions for Ammunition and Explosives to distinguish between the Contractor and the rest of the "public":

( e ) Contractor responsibility for safety.

(1) Nothing in this clause, nor any Government action or failure to act in surveillance of this contract, shall relieve the Contractor of its responsibility for the safety of—

  • (i) The Contractor's personnel and property;

    (ii) The Government's personnel and property; or

    (iii) The general public.

Since I lost the entire edit on my desktop due to a blp in the public power supply, I'm not go into long detail with quotes again, concerning what the .AP clause provides for.

Suffice to say that one can read the clause to also apply to the safety of the Contractor's employees.

1. the clause requires the Contractor to comply with the standards issued by the Secretary of Labor at 29 CFR Part 1926 and 29 CFR Part 1910; and to ensure that any additional measures the Contracting Officer determines to be reasonably necessary for the purposes are taken.

2. If the contract is for construction or dismantling, demolition or removal of improvements with any Department of Defense agency or component, the Contractor shall comply with all pertinent provisions of the latest version of U.S. Army Corps of Engineers (USACE) Safety and Health Requirements Manual, EM 385-1-1, in effect on the date of the solicitation. That EM applies to the Contractor and its personnel (and it applies to USACE personnel, as applicable to Government activities).

3. Paragraph (d) of the clause is what provides the KO the authority to direct compliance and to stop all or part of the work, if necessary, until satisfactory corrective action has been taken. The clause states that the Contractor shall not be entitled to any equitable adjustment of the contract price or extension of the performance schedule on any stop work order issued under this clause.

Due to the importance of Safety and since the clause doesn't provide for a price or time adjustment (when properly and reasonably used), the USACE has established policy that the COR can generally act in the capacity of the KO and, as far as I can recall, any USACE representative can take immediate action to direct compliance and to order at least a partial stoppage of work, if necessary.

Bottom line, as said by others and by me:

  • Don't cite or direct a "suspension of work" under the SOW clause for safety issues.
  • Check your agency policy for delegation of authority under the AP clause.
  • As to permanent removal of objectional employees under the "Material and Workmanship" clause, that clause might be reserved for the KO.

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If I was a COR and I saw a contractor employee doing something that could cause injury to themselves or others, I would tell them to stop work, and then contact the CO. Whether that is permissable or not I would worry about later. I wouldn't allow policies and procedures to stand between me, and doing what is right. Doing the right thing is sometimes more important than doing things right. I acutally had this happen many years ago where I witnessed contractor employees on a contract (not construction) I was COR for, working in a confined space without having the proper prootective equipment, or the equipment to test the combined space for hazards. I verbally ordered the employees to to stop work and get out of the manhole until they were later told differently. They did get out, and I went and informed the CO immediately of what I had done. He agreed with my course of action, and issued an "official" stop work order in writing.

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Agreed. And they were violating OSHA to boot...

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Question: CORs are frequently authorized to provide contractors with "technical direction". In practice, this is frequently translated into providing a contractor with instructions on how a specific work activity should or must be performed. In the absence of contract language which defines the methods of contract performance, is such instruction contrary to FAR 1.602-2 (d)(5)?

Question: The FAR defines "Contracting Offficer" as including "certain authorized representatives of the contracting officer acting within the limits of their authority as delegated by the contracting officer". Is a COR a contracting officer?

Answer 1: If the contract does not specify a particular method to perform the work, then a COR can't impose one. That would require a contract modification.

Answer 2: Yes, the term "contracting officer" as defined at FAR 2.101 includes CORs acting within the scope of their delegated authority.

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jtolli,

I understand where you're coming from -- but I would think that your contracting officer erred if he or she issued a stop work order under the Stop Work Order clause at FAR 52.242-15. You don't tell us what authority was used for the stop work order.

If your contracting officer cited the Stop Work Order clause, then he or she also agreed that the Government would make an equitable adjustment in the contractor's favor (in terms of time and/or money) for any inconvenience to the Contractor caused by the Government's stop work order.

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I can think of a number of good reasons why a COR could and should be delegated authority to stop or suspend work, especially when safety, environmental protection, infrastructure protection, preservation of archeological or paleontological artifacts, etc., is at stake and when the work is remote from the contracting office and the contracting officer cannot be reached.

See FAR 1.102-4(a) and ( b ):

(a) Government members of the Team must be empowered to make acquisition decisions within their areas of responsibility, including selection, negotiation, and administration of contracts consistent with the Guiding Principles. In particular, the contracting officer must have the authority to the maximum extent practicable and consistent with law, to determine the application of rules, regulations, and policies, on a specific contract.

( b ) The authority to make decisions and the accountability for the decision made will be delegated to the lowest level within the System, consistent with law.

Emphasis added.

FAR 1.602-5(d)(5) is ambiguous. It says CORs do not have certain authorities, but it does not say that they may not be delegated those authorities. In my opinion, it should not be read it as broadly restrictive of the CO's power to delegate.

As a DOE CO, I delegated authority to make certain kinds of changes to my CORs. It worked fine and saved both time and money. They never abused or misused their authority.

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Since a COR has no inherent authority, but obtains only that which is delegated by the CO, what then is the purpose of FAR 1.602-2(d)(5), Vern?

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The purpose is to state the ordinary fact about CORs. However, it neither directs the CO to do anything nor prohibits the CO from doing anything. It does not say that the CO may not delegate any particular authority to a COR.

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Sorry, Carl. I edited my post #10 of yesterday. It should have been in response to ji20874's post #8, not your post #3. I was in a tree yesterday morning on the last day of our deer season, watching for deer. My *@#@#$@%$%&%^$@ cell phone only has about 1/3 of an inch of the screen available for typing and navigating through the thread.

*@#@#$@%$%&%^$@ = "very nice"

P.S. : Seven deer came out while I was typing :ph34r:

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jtolli,

I understand where you're coming from -- but I would think that your contracting officer erred if he or she issued a stop work order under the Stop Work Order clause at FAR 52.242-15. You don't tell us what authority was used for the stop work order.

If your contracting officer cited the Stop Work Order clause, then he or she also agreed that the Government would make an equitable adjustment in the contractor's favor (in terms of time and/or money) for any inconvenience to the Contractor caused by the Government's stop work order.

Agreed. For construction contracts, he Accident Prevention clause specifically mention a stop work order under the clause.

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FAR 1.602-5(d)(5) is ambiguous. It says CORs do not have certain authorities, but it does not say that they may not be delegated those authorities. In my opinion, it should not be read it as broadly restrictive of the CO's power to delegate.

Major premise: A COR has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions.

Minor premise: Person A has the authority to make commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract.

Conclusion: Person A is not a COR.

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Major premise: A COR has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions.

Minor premise: Person A has the authority to make commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract.

Conclusion: Person A is not a COR.

Don, I said to myself, I'm glad HE said that! But then, I started thinking. Is a KO or even an ACO always going to be around a job site that is 200 miles or even 50 miles from their office when decisions have to be made affecting pre-priced unit priced estimated quantities of work that has actually has to be done? Examples are the depth of unit priced undercut and backfill with suitable soil in a parking lot or along a runway, taxiway, roadway, embankment during excavation operations. Another example may be the observation and decision on depth of piles while pile driving. How about length of well screen to install during a well drilling operation? There are a myriad of different scenarios that involve informed technical decision making as to whether more or less or no unit priced work is necessary in construction. Outside of the Government, those decisions are typically the contractual as well as legal responsibility for maintain ing the technical integrity of the design by "the Architect of Record" or the "Designer of Record" and such decisions often are made on the site in the middle of construction operations.

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joel,

I'm not saying that the rule is practical or realistic. I'm just interpreting it as it is written.

Don, then I will tell you that it isn't always possible to follow it and that it isn't always followed in the real world of Federal contracting. Rules like that contribute to the fact that federal construction costs are sometimes two to three times higher for the same functional construction projects in the commercial world outside.

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Major premise: A COR has no authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract nor in any way direct the contractor or its subcontractors to operate in conflict with the contract terms and conditions.

Minor premise: Person A has the authority to make commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract.

Conclusion: Someone gave the COR authority. See e.g., 48 CFR 570.502-2.

I wondered when we'd hear from you.

The major premise does not say that no one can give the COR authority. If you don't see "shall," "shall not," "must," "must not," or "may not," you're good to go. You don't have to see "may."

I checked the final rule that added paragraph (d)(5) and neither the background statement nor the report it cited as the basis for adding the text said anything that makes me think a delegation is forbidden. The wording of (d)(5) strikes me as strange if the idea is that a COR may not be given the authority. Why not just say; "may not delegate...."? As far as I'm concerned, if they don't explicitly say I can't, then I can, and if it makes sense, then that's what I'm going to do. A COR should be given whatever authority is necessary to make things work.

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