justin.wilson

Signing actions above warrant authority?

56 posts in this topic

I have recently transitioned to a new agency and have been surprised by a local policy that states "As a general rule, the contract specialist originating a document signs it as the CO (Contracting Officer) after all required reviews."  In practice, this language is cited supporting the fact that a specialist (non-warrant holder) would actually sign contract actions, or a contracting officer may sign actions over their delegated warrant authority.  Now, one of the levels of review required would be from a Contracting Officer that holds the required warrant authority and they would be required to sign the review forms necessary.  Though, again, the ultimate government signatory may not actually have a warrant that covers the value of the action. 

In speaking with our local policy official, it was explained that the rationale behind this approach is that the contract specialist whom is involved with the acquisition has a far greater knowledge base about the acquisition than a Contracting Officer whose only contribution is their warrant authority.  While I understand that point of view, it was always my belief that the Specialist/Officer dichotomy centered around the Contracting Officer keeping familiar at least in a general sense with their contract. The specialist is responsible for keeping the Contracting Officer aware of issues and potential complications. 

Ultimately, I THINK I would be protected from personal liability if this practice was ever challenged in litigation as long as I am operating within established contracting office policy - but am not really sure.  The legal council for the office has apparently signed off on this practice, so that does alleviate some of my concern. 

I consider myself a moderately seasoned contracting professional, and have always understood that you just do not sign actions that you do not have warrant authority to sign.  However, I certainly do not have a robust knowledge of the various agencies policies when it comes to warrant delegation. 

I am curious if:

(a) Anyone else operates under this type of structure?

(b) If so, has it ever been challenged? 

(c) General thoughts about this structure, such as does this approach fall within the purview of FAR 1.602-1(a) "Contracting officers may bind the Government only to the extent of the authority delegated to them. Contracting officers shall receive from the appointing authority (see 1.603-1) clear instructions in writing regarding the limits of their authority." Also, am I at risk for Unauthorized Commitments with every action I would be signing?

I am consciously being vague about the agency/office just to avoid seeming accusatory, but suffice to say that agency FAR supplement does not address this - only the local policy does.  Sorry for the long post, but I thank you all in advance for any input. 

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Good. If they've issued a written policy, then what difference does it make what any of us thinks about it? What are you going to do if someone tells you it's a bad idea or that it's "illegal" or an unauthorized deviation from FAR (as someone almost certainly will)? I'm not trying to be rude, but my advice is to quit worrying or even wondering about it.

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justin.wilson,

Does anything prohibit the contracting officer from delegating their authority?

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32 minutes ago, Vern Edwards said:

Good. If they've issued a written policy, then what difference does it make what any of us thinks about it? What are you going to do if someone tells you it's a bad idea or that it's "illegal" or an unauthorized deviation from FAR (as someone almost certainly will)? I'm not trying to be rude, but my advice is to quit worrying or even wondering about it.

Your response doesn't seem rude to me at all.  I don't plan on any whistleblowing or anything based upon responses here.  I suppose I was just interested in seeing if the practice was more common than it appeared to me.  Like I said, I am not at all rounded enough to know other contracting activities' policies and was thinking this forum may be able to provide some insight.  I also am very curious if somehow someone here has insight regarding the practice being challenged (whether in terms of contracting litigation or in HR aspects).  I know the HR aspect isn't exactly germane in this forum, but that was why I posted in the Contracting Workforce section.  Nonetheless, I appreciate your advice. 

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18 minutes ago, Don Mansfield said:

justin.wilson,

Does anything prohibit the contracting officer from delegating their authority?

I suppose I am applying the simplistic view that authority to bind the Government is only delegable in the form of a warrant issued by the HCA (or whomever is assigned) and subject to the limitations stated within that warrant - so in that sense I would think the contracting officer is prohibited from delegating their authority.  Case in point, a Contracting Officer may appoint a COR, or a ACO, both of which would have to have their own warrants in order to legally bind the Government even acting in their delegated roles.  Although you raise an interesting point regarding a separate, documented delegation of signatory authority.  However, to Vern's point above, that is probably covered via the written policy.

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Very strange.

Only contracting officers can enter into and sign contracts on behalf of the Government and must be appointed in accordance with FAR 1.603 unless and HCA or above.  The appointing authority must give the contracting officer clear instructions regarding the limits his or her authority and the appointment must be in writing on a SF 1402.  A contracting officer cannot appoint another person as a contracting officer or delegate their authority to sign a contract, unless that CO is also the appointing authority for your office.

-------------

"Contracts may be entered into and signed on behalf of the Government only by contracting officers." (FAR 1.602)

"Contracting officers below the level of a head of a contracting activity shall be selected and appointed under 1.603." (FAR 1.602)

"Contracting officers have authority to enter into, administer, or terminate contracts and make related determinations and findings. Contracting officers may bind the Government only to the extent of the authority delegated to them. Contracting officers shall receive from the appointing authority (see 1.603-1) clear instructions in writing regarding the limits of their authority. Information on the limits of the contracting officers’ authority shall be readily available to the public and agency personnel."  (FAR 1.602-1)

"Contracting officers shall be appointed in writing on an SF 1402, Certificate of Appointment, which shall state any limitations on the scope of authority to be exercised, other than limitations contained in applicable law or regulation."  (FAR 1.603-3)

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3 minutes ago, Todd Davis said:

A contracting officer cannot appoint another person as a contracting officer or delegate their authority to sign a contract, unless that CO is also the appointing authority for your office.

Where does it say that?

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5 minutes ago, Don Mansfield said:

Where does it say that?

FAR Subpart 1.6 uses the term "appointing official."  That is the person(s) who appoints COs in writing on an SF 1402.  The appointing official may or may not be a CO.  Even if he or she is a CO, they are not exercising their CO authority, but rather the appointment authority delegated to them by their agency.

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14 minutes ago, Todd Davis said:

FAR Subpart 1.6 uses the term "appointing official."  That is the person(s) who appoints COs in writing on an SF 1402.  The appointing official may or may not be a CO.  Even if he or she is a CO, they are not exercising their CO authority, but rather the appointment authority delegated to them by their agency.

Ok, but where does it say what the CO can or cannot delegate?

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The FAR Conventions, specifically FAR 1.108(b), may be helpful here:

Quote

Delegation of authority. Each authority is delegable unless specifically stated otherwise (see 1.102-4(b)).

FAR 1.102-4(b) states:

Quote

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

 

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20 minutes ago, Don Mansfield said:

Ok, but where does it say what the CO can or cannot delegate?

The FAR specifically specifies who is "the appointing authority" and there is not a list of other positions or titles that have such authority.  So for a CO to have authority to designte another as a CO, they would have to be designated as an appointing authority within their agency.  Now I supposed that an agency could specify that any CO is also considered an appointing authority in their policy, but that doesn't sound like a good way to control the appointment of contracting officers.

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When I was with the Department of Energy I delegated authority to issue change orders up to $50,000 to my chief field inspectors. Naturally, I trained them properly.

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Todd,

I get that the appointing authority is the one who can appoint someone a contracting officer on a SF 1402. However, all authorities in the FAR are delegable unless specifically stated otherwise (FAR 1.108(b)). So, if the FAR grants the contracting officer the authority to do something and is silent on whether the authority is delegable, why couldn't they delegate that authority? Do you think the delegate would also have to be appointed on a SF 1402?

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The OP asked about the authority to sign contract generally, even contracts over a CO's existing appointment authority or where there was no SF 1402 issued, not the appointment of ordering officials/officers.

When I was in the Air Force I appointed ordering officials for decentralized BPAs.  I know that ordering authority can be delegated if permitted by regulation/policy, but that wasn't what the OP was describing.  Also, I didn't ready all of the FOO guidance, but it appears they are limited to mircopurchases and their appointment is specifically accomplished pursuant to agency policy.  While we don't have access to the OP policy in question, it appears it is not agency policy, but rather a local office policy.

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10 minutes ago, Don Mansfield said:

So, if the FAR grants the contracting officer the authority to do something and is silent on whether the authority is delegable, why couldn't they delegate that authority? Do you think the delegate would also have to be appointed on a SF 1402?

So your telling me that if I have an unlimited appointment, the FAR permits me to delegate my authority to sign contracts of any amount to anyone?

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24 minutes ago, Vern Edwards said:

When I was with the Department of Energy I delegated authority to issue change orders up to $50,000 to my chief field inspectors. Naturally, I trained them properly.

Vern, was this something expressly permitted by agency policy or was this something you already had the authority to delegate?

FAR 1.602-2(d)(5) specifically prohibits a COR from even having the 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."  It is interesting that a trained COR is not permitted to have such authority, but a trained chief field inspector would be.

I think it is reasonable to delegate such authority where appropriate and the individuals are trained, provided it is consistent with the FAR and agency policy (if applicable).

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Todd,

I'm not telling you anything. You asserted that FAR subpart 1.6 prohibited a certain type of delegation and asking for proof because I don't see it.

If the FAR does not expressly prohibit a CO from delegating their authority to sign contracts of an amount within their authority, then why should we think it's prohibited?

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There is no such express prohibition at FAR subpart 1.6.  However, as I described earlier, in my opinion it clearly states who does have the authority to appoint a CO, the appointing official, not a contracting officer.  I don't believe that general delegation of authority permitted by FAR 1.108 has anything to do with the appointment of contracting officers since the issue is addressed by more specific policy at subpart 1.6.  Maybe I'm wrong and if so, I will learn.

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Todd, do you see appointment as a contracting officer as being the same thing as a contracting officer delegating some of his/her authority to another?

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7 minutes ago, Retreadfed said:

Todd, do you see appointment as a contracting officer as being the same thing as a contracting officer delegating some of his/her authority to another?

No.  I see them as separate things.

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If they are separate things, why could the contracting officer not do the latter if it is not prohibited by his/her warrant since the contracting officer is not appointing anyone as a CO??

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