Authorities Delegated to COR

[Don Mansfield]

Vern,

You are saying that the FAR does not prohibit the delegation of the authorities at FAR 1.602-2( d )(5). I am saying that if someone did have these authorities, by delegation or otherwise, they would not be a COR as described by the FAR (see syllogism above).

FYI, the language at FAR 1.602-2( d )(5) was taken from the former DFARS 201.602-2(2)(iv), which said that 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."

Prior to December 1, 2006, the DFARS said "A contracting officer's representative...May not be delegated authority to make any commitments or changes that affect price, quality, quantity, delivery, or other terms and conditions of the contract." The rule was then changed to the "Has no authority..." language (see 71 FR 69488). The stated purpose of the change was not to change this policy, but to "clarify the authority of the contracting officer's representative."

For DoD, there's a required clause when using a COR at DFARS 252.201-7000 (DEC 1991). This clause states: "The COR is not authorized to make any commitments or changes that will affect price, quality, quantity, delivery, or any other term or condition of the contract." As such, the delegation that you described would not be permitted.

[Guest Vern Edwards]

Don:

I know how to read a regulation. If the FAR councils don't want certain authority delegated to CORs, then that's what they should say in no uncertain terms. If they can't be definite, then they should be ignored. Once upon a time the reg writers were held in high esteem. They were at the top of the heap. (I'm talking about the old ASPR Committee.) No longer.

I absolutely refuse to read a "shall not" command where one has not been explicitly given. More importantly, I do not think that such an across the board policy would be wise, and I base that judgement on actual field experience. As a former director of contracts I have delegated such authority and more to CORs. It worked well for my organization, which was rated very highly by the agency PMR teams, and it worked to the benefit of the public. I would do it again today in a heartbeat, FAR 1.602-2(d)(5) be damned. If the policymakers had any respect for contracting officers they would let them delegate whatever authority they like to their own representatives consistent with mission needs and individual COR qualifications. So much for the "guiding principles."

That's all I have to say about it, Don. If you don't think COs can delegate authority to issue a stop work or suspension of work order to a contractor, even in an emergency, then don't do it and teach that to your students. I hope you understand me.

Now, I'm leaving this petty crap topic behind me and moving on to more important topics in acquisition -- like the sources of workforce competence, the nature of services, the nature and principles of acquisition strategy, and the effectiveness of competition policy. I'll be damned if I'll spend my last years in this business arguing about COR authority rules when we don't know how to buy IT in a world in which IT is crucial to our national security and public well-being.

Wifcon Forum no longer seems to be a place to discuss important things. It has become "FAQ for the Clueless and the Too Lazy to Read and Think for Themselves." Professionally interesting topics are becoming ever less discussed here. We've got serious problems in acquisition, what with Supply Corps admirals being admonished and relieved for accepting the services of prostitutes provided by ship husbanding contractors and a workforce that is losing respect, trust, self-esteem, and control of its own professional destiny.

Allow me to suggest that if you want to write about something really useful, write about how DAU can provide decent professional education, and say what that kind of education would be like.

Talk to you later, about something else.

[ji20874]

Certainly, a COR could be delegated authority to issue a stop work order under the Accident Prevention clause at FAR 52.236-13.

Such a delegation would not offend FAR 1.602-2( d )( 5 ). See the last sentence in para. ( d ) of the clause: "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."

[ji20874]

Vern,

You wrote, "If the policymakers had any respect for contracting officers..." -- that's the fundamental problem -- policymakers do not have any respect for contracting officers. And the guiding principles in FAR 1.102 are routinely ignored by policymakers -- there are very few policymakers who even know that FAR 1.102 exists and even fewer who would support it in any meaningful way.

[joel hoffman]

That's all I have to say about it, Don. If you don't think COs can delegate authority to issue a stop work or suspension of work order to a contractor, even in an emergency, then don't do it and teach that to your students. I hope you understand me.

For DoD, there's a required clause when using a COR at DFARS 252.201-7000 (DEC 1991). This clause states: "The COR is not authorized to make any commitments or changes that will affect price, quality, quantity, delivery, or any other term

1. The DOD clause doesn't prevent a CO from delegating authority to issue a stop order when necessary to enforce contract provisions for safety or in an emergency if it wouldn't affect price, quality, time, etc.EDIT: I agree with ji's similar statement posted while I was writing this post.

2. I could read that clause to say that the COR can't change or commit to change the specified quality or scope of work but would not prevent the KO from delegating authority to a COR to make decisions within the technical terms of the contract, such as those situations that I described earlier (how much of an estimated quantity of unit priced work is necessary where the contract provides for a technical decision or engineering judgement). One uses unit priced items in situations when the exact quantity isn't able to be accurately determined and/ or where the contract otherwise contains methods for making judgements concerning when or when not to perform some operation or provide some quantity of materials and the like Other examples are, marking trees to be saved/removed under a unit-priced CLIN, determining the exact extent of concrete pavement crack repairs to make under a unit-priced CLIN while in the field, as the work progresses. I had to do that 45 years ago during an airfield pavement joint sealing contract with estimated quantities of crack repairs to be determined on the ground.

3. If the clause is in the contract (which is a requirement) , then the rest of the contract must generally be consistent and not contradict it.

4. A KO would have to issue a contract change to delegate a COR the authority to change a term of the contract.

5. If there were an emergency situation or a situation where the COR would have to stop or suspend work temporarily (reasonable period under the circumstances) until they could call the KO to discuss what to do to prevent waste, tear out, prevent an environmental violation, if encountering unexplored ordinance, etc., then only an idiot or complete ass would not comply with the COR's direction... The parties should sort it out afterward as to whether it was reasonable or whether an adjustment should be given. If the relationship is sour, that would be the least of the problems. So, the above assumes we are talking about reasonable people.

[Don Mansfield]

Don:

I know how to read a regulation. If the FAR councils don't want certain authority delegated to CORs, then that's what they should say in no uncertain terms. If they can't be definite, then they should be ignored. Once upon a time the reg writers were held in high esteem. They were at the top of the heap. (I'm talking about the old ASPR Committee.) No longer.

I absolutely refuse to read a "shall not" command where one has not been explicitly given. More importantly, I do not think that such an across the board policy would be wise, and I base that judgement on actual field experience. As a former director of contracts I have delegated such authority and more to CORs. It worked well for my organization, which was rated very highly by the agency PMR teams, and it worked to the benefit of the public. I would do it again today in a heartbeat, FAR 1.602-2(d)(5) be damned. If the policymakers had any respect for contracting officers they would let them delegate whatever authority they like to their own representatives consistent with mission needs and individual COR qualifications. So much for the "guiding principles."

That's all I have to say about it, Don. If you don't think COs can delegate authority to issue a stop work or suspension of work order to a contractor, even in an emergency, then don't do it and teach that to your students. I hope you understand me.

Now, I'm leaving this petty crap topic behind me and moving on to more important topics in acquisition -- like the sources of workforce competence, the nature of services, the nature and principles of acquisition strategy, and the effectiveness of competition policy. I'll be damned if I'll spend my last years in this business arguing about COR authority rules when we don't know how to buy IT in a world in which IT is crucial to our national security and public well-being.

Wifcon Forum no longer seems to be a place to discuss important things. It has become "FAQ for the Clueless and the Too Lazy to Read and Think for Themselves." Professionally interesting topics are becoming ever less discussed here. We've got serious problems in acquisition, what with Supply Corps admirals being admonished and relieved for accepting the services of prostitutes provided by ship husbanding contractors and a workforce that is losing respect, trust, self-esteem, and control of its own professional destiny.

Allow me to suggest that if you want to write about something really useful, write about how DAU can provide decent professional education, and say what that kind of education would be like.

Talk to you later, about something else.

I understand you. Peace.