justin.wilson

Signing actions above warrant authority?

56 posts in this topic

 This delegating the award of contracts to any Government Employee** you want defies my 18 years of contract training.  And lead to a helluva lot more chaos than we already have in my office. 

  ** Awards are inherently Governmental so contract hires would definitely be out.   

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Boof, the question before the house is not whether it is a good idea or a bad idea, but whether it is prohibited by something.

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3 hours ago, Todd Davis said:

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

Well, I kind of cheated in my answer, because I was working for a bureau that was not subject to FAR and that did not use appropriated funds. Also, I got approval from the HCA. Sorry for the misleading response.

Having admitted that much, I think that everyone should keep in mind that we haven't seen the policy and we don't know exactly what it says or at at what level it was authorized. While unconventional, and maybe unwise, I think that it goes too far to say that it is illegal or improper. I think that whether COs can delegate their authority is pretty much a matter of agency policy and procedure. I don't think that any CO anywhere can delegate his or her authority, but I'm sure that some COs at some agencies can do so.

In short, I stick to my first response: Don't worry or wonder about it.

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19 hours ago, Todd Davis said:

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)

That looks fairly straight forward. And for DOD, the minimum qualifications for a new KO below the senior agency level are established by Statute. 

 

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It's interesting that of all the quotes from FAR in this thread I haven't seen this one from FAR 2.101:

Quote

“Contracting officer” means a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings. The term includes certain authorized representatives of the contracting officer acting within the limits of their authority as delegated by the contracting officer.

I apologize in case it was quoted and I missed it.

With respect to the policy under discussion, as far as I know none of us has seen it and know little about, it except for one short quote:

Quote

As a general rule, the contract specialist originating a document signs it as the CO (Contracting Officer) after all required reviews.

Titles 10 and 41 of the U.S.C. say very little about CO appointment procedures and very little more about the qualifications needed to be a CO. One does not have to meet very demanding statutory standards of schooling, knowledge (which is not the same as schooling), skill, or experience. I suspect that many GS-12s possess those qualifications, and some GS-11s. Maybe even some GS-09s. I saw nothing in the statutes requiring any badge or certificate of appointment.

I saw nothing in FAR 1.603 that precludes waiver of its requirements, so the head of the contracting activity in many agencies can approve a class deviation with respect to its procedures, including the use of SF 1402.

FAR 1.601 cites no statute in connection with its statement that contracts may be entered into and signed only by COs. The same is true of FAR 4.101, which states: "Only contracting officers shall sign contracts on behalf of the United States." Whiles some statutes require that some actions be taken by a contracting officer, such as a final decision on a claim, I have found nothing in statute stating that contracts may be entered into and signed only by contracting officers. 10 USC 2305 says that the "agency head" shall award contracts and 41 USC 3703 says "the executive agency." I'm going through one of my periodic bouts of bad eyesight, so  I may have missed something, I'll keep looking.

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Wow, I really appreciate all of the input.   It seems as though the focus has been on the Contracting Officer's ability to delegate signing of actions, which from what I am reading holds true.  Referring back to the original post, I was curious to see if anyone else has operated under this type of structure and, if so, was it ever challenged.  With 450 views of the post and no responses to that effect, it appears that the answers to those questions are "no".  Or, at least not from anyone with an Wifcon account to post replies.  I have done some searching for precedence with GAO, COFC, and CBCA but have not come up with anything directly relating.  If anyone does have any cases they know of, sharing would be appreciated. 

From the perspective of the signer that does not hold the direct warrant authority, I would be nervous to sign my name to actions - and that is where the original post was generated from.  In a theoretical sense it seems as though that signer is protected from liability, but that is why I was curious of a real-world application of the practice. 

Thanks again. 

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1 hour ago, justin.wilson said:

I was curious to see if anyone else has operated under this type of structure and, if so, was it ever challenged.

You'll never know the answer to that question, unless by "anyone" you meant "anyone reading this thread." In any case, Wifcon membership is a small percentage of the total population of contracting personnel, and active participants in the discussion board is a minuscule part of that membership. Who knows who else is doing what?

Anyway, if it were wrong to do would you feel better and safer knowing that others are doing wrong as well?

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13 hours ago, Vern Edwards said:

It's interesting that of all the quotes from FAR in this thread I haven't seen this one from FAR 2.101:

Quote

“Contracting officer” means a person with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings. The term includes certain authorized representatives of the contracting officer acting within the limits of their authority as delegated by the contracting officer.

 

I apologize in case it was quoted and I missed it.

With respect to the policy under discussion, as far as I know none of us has seen it and know little about, it except for one short quote:

Titles 10 and 41 of the U.S.C. say very little about CO appointment procedures and very little more about the qualifications needed to be a CO. One does not have to meet very demanding statutory standards of schooling, knowledge (which is not the same as schooling), skill, or experience. I suspect that many GS-12s possess those qualifications, and some GS-11s. Maybe even some GS-09s. I saw nothing in the statutes requiring any badge or certificate of appointment.

I saw nothing in FAR 1.603 that precludes waiver of its requirements, so the head of the contracting activity in many agencies can approve a class deviation with respect to its procedures, including the use of SF 1402.

FAR 1.601 cites no statute in connection with its statement that contracts may be entered into and signed only by COs. The same is true of FAR 4.101, which states: "Only contracting officers shall sign contracts on behalf of the United States." Whiles some statutes require that some actions be taken by a contracting officer, such as a final decision on a claim, I have found nothing in statute stating that contracts may be entered into and signed only by contracting officers. 10 USC 2305 says that the "agency head" shall award contracts and 41 USC 3703 says "he executive agency." I'm going through one of my periodic bouts of bad eyesight, so  I may have missed something, I'll keep looking.

Vern, the extended definition of contracting officer in 2.101 is used in conjunction with COR's taking actions during administration of contracts. Many clauses and other contract specifications refer to actions that the "contracting officer" will take or respond to.  If the KO were to actually have to personally take all those actions on the hundreds of active contracts in a typical USACE District, they wouldn't have time for anything else.  Instead, they appoint COR's for contracts with copies furnished to the contractor. The appointment letters describe the extent and limits of their authority.  

For instance, there used to be up to three or four COR's who were delegated certain specific signature duties on each construction contract before we had electronic contract admin systems with electronic signatures. 

It was just a way for the KO to delegate administrative functions to CAB personnel in those cases. I approved final payments on construction contracts for the KO, as the (Acting) Chief of Construction, who was delegated that COR authority by position but was seldom in the office.  

Im in a hotel room without access to a real computer at the moment,  But last night,  I read the 10 USC description of the Defense Acquisition Workforce Improvement Act qualification requirements for  KO's, which are much more than those prior to DAWIA. 

I also was unable to find Statutory or DOD, Service, or Agency FAR Supplements or PGI, etc. in a brief search effort last night for KO appointment procedures. I've seen the USACE policies  and procedures for KO appointments before I retired but I don't have access to the Intranet at the moment.  Our ACO's have specific, limited Warrant authorities to modify contracts but not to enter into new contracts. Ordering Officers likewise have specific authorities.

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Joel:

What's your point?

Verm

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9 hours ago, Vern Edwards said:

Joel:

What's your point?

Verm

Vern, what was your point?

1. You said that it was interesting that you hadn't seen the definition of contracting officer in 2.101. quoted in this thread.  I am explaining the context of the extended definition, as it pertains to COR's/ARCO's delegated certain KO functions in the administration of existing contracts. The FAR definition of KO that you referred to doesn't pertain to the OP's question  about a KO instructing a contract specialist to sign contracts as KO.

The current version of clause 52.202-1 informs the contractor by reference that the term contracting officer is extended to those authorized representatives acting within their delegated authority. To my recollection, the same or similar definition of contracting officer used to be a separate clause in our contracts.  Our KO's identify the applicable authorized COR's and their specific authorities.  The method and clause language has changed but our organization has done that for at least 25 or more years. My guess is that when and/or after the FAR Council moved  many definitions to subpart 2.2, they simply referenced the FAR definition of KO. For DOD, DFARS 202.101 also defines the term COR. See also, DFARS clause 252.201-7000  Contracting Officer's Representative. The definition of contracting officer at 2.101 would lead to delegation of duties to authorized representatives of the KO to award or to sign contracts on behalf of the government.

2. You said that that there was "very little more" mention of the qualifications for being appointed a KO in Titiles 10 and 41.  I believe that the DAWIA standards are codified in 10 USC 1724.  In addition, see DFARS 201.603  Selection, appointment, and termination of appointment for contracting officers. They are "very much more" than the previous minimum qualification standards for appointment. 

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Joel:

My point was that the FAR defines the term "contracting officer" to include people who have been delegated authority ("appointed") by a contracting officer. The term is not limited to those who have an SF 1402. The purpose of the FAR definition of CO is to state what that term means as used in the FAR. There is no "extended" definition of contracting officer. There is a definition. Period. The definition says what it says, and I see no reasonn to interpret it on any basis other than its plain language.

Your point is that the FAR definition of CO doesn't pertain to the OP's question about a KO instructing a contract specialist to sign contracts as CO. Your vague recollections of the history of the definition in DOD and your references to the DFARS prove nothing of the sort.

As for the DAWIA standards in 10 USC 1724... Please, don't make me laugh.

Agency appointment standards, procedures, and management practices are all over the map. Most contracting personnel are really purchasing agents and glorified procurement clerks. I see no reason to be upset over what the OP's agency is doing. Lawyers and contracting geeks like me could raise issues, but most senior managers in government couldn't care less. There is so much paperwork that they just need people who can wield a pen. The more of them the better. There's nothing sacred about contracting officers anymore. Agencies have seen to that. Maybe there never was.

Vern

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Vern, the bold highlighted language in your earlier post refers to authorized representatives of the contracting officer, acting within their delegated authority. I assume that bold language is what you were focusing on.   The FAR and DFARS define what a contracting officer's representative is, who must act within their authorized authority. The FAR clause and DFARS clause that I referred to incorporate those definitions into the contract. Nothing in those definitions of a contracting officers representative would tell me that an authorized rep of the contracting officer can sign the contract. 

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Don, I'm beginning to think that this thread is a set-up, at least as far as DOD policy is concerned. Surely, DAU includes courses that cover the warranting process, qualifications and controls on appointments of DOD contracting officers below the Agency Heads, Heads of Contracting Activities and other senior level appointments and who can sign contracts for the government.

I won't argue either way concerning what happens in non-DOD agencies.  

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29 minutes ago, joel hoffman said:

Don, I'm beginning to think that this thread is a set-up, at least as far as DOD policy is concerned. Surely, DAU includes courses that cover the warranting process, qualifications and controls on appointments of DOD contracting officers below the Agency Heads, Heads of Contracting Activities and other senior level appointments and who can sign contracts for the government.

I won't argue either way concerning what happens in non-DOD agencies.  

joel,

It's certainly not beneath me to start a thread that is a set-up, but this is not one of those instances. The OP did not say that he was in DoD, so I'm only paying attention to what the FAR says.

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5 hours ago, joel hoffman said:

Nothing in those definitions of a contracting officers representative would tell me that an authorized rep of the contracting officer can sign the contract. 

Joel: I don't care about the DFARS. this thread is about all agencies. If the DFARS prohibits what we're talking about, so be it.

Here is the FAR definition of "contracting officer's representative":

Quote

“Contracting officer’s representative (COR)” means an individual, including a contracting officer’s technical representative (COTR), designated and authorized in writing by the contracting officer to perform specific technical or administrative functions.

That doesn't tell me anything that a COR might be authorized to do. But an "administrative function" could include signing change orders, supplemental agreements, stop work orders, suspension of work orders, or changes to GFP. An agency head or HCA may authorize an individual or class deviation from FAR 1.602-2(d)(5).

Here is the FAR coverage of CORs in 1.604:

Quote

1.604  Contracting Officer’s Representative (COR).

A contracting officer’s representative (COR) assists in the technical monitoring or administration of a contract (see 1.602-2(d)). The COR shall maintain a file for each assigned contract. The file must include, at a minimum −

(a) A copy of the contracting officer’s letter of designation and other documents describing the COR’s duties and responsibilities;

(b) A copy of the contract administration functions delegated to a contract administration office which may not be delegated to the COR (see 1.602-2(d)(4)); and

(c) Documentation of COR actions taken in accordance with the delegation of authority.

Again, an administrative function could include signing a change order, a supplemental agreement, a stop work order or a suspension of work order, or a change to GFP. Again, an agency head or HCA may authorize an individual or class deviation from FAR 1.602-2(d)(5).

Keep in mind that we're talking about departures from the norm.

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9 hours ago, joel hoffman said:

I won't argue either way concerning what happens in non-DOD agencies.  

Vern, I meant to tell you the above, too.  

However, for acquisitions subject to the DFARS, one cannot rely on the FAR definition of COR and coverage of COR's at FAR 1.604 alone to validate the argument that  "an administrative function could include signing a change order, a supplemental agreement, a stop work order or a suspension of work order, or a change to GFP. Again, an agency head or HCA may authorize an individual or class deviation from FAR 1.602-2(d)(5)."

Hopefully, we are  past any argument that a COR in DOD can sign a new contract.  A COR doesn't sign new contracts. Contracting Officers sign new contracts.  A COR is assigned to or designated  to a contract or contracts.

As for DOD Standard for COR certification, see DOD Instruction 5000.72; for designation as a COR to a contract or contracts, see  DFARS 201.602-70  and the following:

252.201-7000. CONTRACTING OFFICER'S REPRESENTATIVE (DEC 1991)

  • (a)  Definition. “Contracting officer's representative” means an individual designated in accordance with subsection 201.602-2 of the Defense Federal Acquisition Regulation Supplement and authorized in writing by the contracting officer to perform specific technical or administrative functions.

  • (b) If the Contracting Officer designates a contracting officer's representative (COR), the Contractor will receive a copy of the written designation. It will specify the extent of the COR's authority to act on behalf of the contracting officer. 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. (End of Clause)"

Sorry about the formatting. I'm typing this post on an iPhone which defies my attempts to control fonts, font size, quotations and other formatting.  

And Don is or should be aware of DOD policies for COR standards and designation policies.  The DOD Instruction includes direction to DAU for COR training curricula. 

If we aren't debating about COR's in DOD, then there isn't anything to argue about concerning other agencies.  They might be all over the place.

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18 hours ago, Vern Edwards said:

Joel:  If the DFARS prohibits what we're talking about, so be it.

Vern, thanks for the clarification, which I believe you added sometime during or after my above response to your post. 

By the way, if you think that the DAWIA qualifications for the appointment of KO's and ACO's in Title 10 and DOD refs and supplements are laughable, you ought to be splitting a gut guffawing at the apparent lack of stated qualification requirements during your searches for Non-DOD activities.

If  KO can simply appoint another person to be a KO to sign contracts and mod prices and other contract requirements thereto, as taxpayers we both ought to be crying.  

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Joel:

Here are key parts of the post that opened this thread:

Quote

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.

That's about all we know about the policy that prompted this discussion. This was my response after confirming that the policy was in writing:

Quote

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.

Todd Davis was the first to object:

Quote

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.

Don Mansfield, Matthew Fleharty, and Retread argued that the policy was not prohibited. Boof joined with Todd in arguing against. Nobody argued that the policy was good or wise. I then posted to quote the FAR definition of contracting officer, which set you off.

I think that an agency can deviate from the procedures in FAR Subpart 1.6 for selection and appointment of COs, on an individual or class basis, if properly authorized to do so. That’s all I have to say about the policy in question.

To me, the procedures in FAR 1.6 are matters of form rather than substance. The ceremonial aspects of CO appointment (e.g., the use of SF 1402) and COR delegation are not important to me. An SF 1402 is a crown, but it does not make the bearer a king. What concerns me is how well the bearer understands their work and how well they do it. Most agencies do not have especially high standards in that regard. The DAWIA standards are not high. And in most agencies, including DOD agencies, COs are nothing special. Contracting work is less professional now than it is administrative and clerical. Not many COs are program business managers.

"O ceremony, show me but thy worth!"

Sad.

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20 hours ago, Don Mansfield said:

The OP did not say that he was in DoD, so I'm only paying attention to what the FAR says.

 

44 minutes ago, Vern Edwards said:

I think that an agency can deviate from the procedures in FAR Subpart 1.6 for selection and appointment of COs, on an individual or class basis, if properly authorized to do so.

The above quotes should be a hint to the OP.  Before accepting merely what the FAR says its agency supplements, and individual delegations must be considered as well.   The FAR does allow the delegation as supported in this thread but experience will suggest that agencies could very well limit or otherwise prohibit the ability of the CO to delegate below their level.   Just like the DFARS matter to DoD agency supplements matter to civilian agencies.

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The OP didn't say that they aren't in DOD. Therefore I responded with respect to DOD. 

If a DOD KO delegated such authority described in the initial post, they should lose their Warrant immediately for remedial training.

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PepeTheFrog wishes more contributors would be willing to post, "Thanks for pointing out that reference-- I retract my earlier statement and now I understand this issue better."

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44 minutes ago, joel hoffman said:

If a DOD KO delegated such authority described in the initial post, they should lose their Warrant immediately for remedial training.

Not if her office authorized the procedure.

Dammit, Joel, you just won't accept the possibllity that the procedure could be authorized, EVEN IN DOD! I see nothing in the DFARS that prohibits a deviation from DFARS Subpart 201.6. Do you? If so, tell me where. Chapter and verse.

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2 hours ago, C Culham said:

 

The above quotes should be a hint to the OP.  Before accepting merely what the FAR says its agency supplements, and individual delegations must be considered as well.   The FAR does allow the delegation as supported in this thread but experience will suggest that agencies could very well limit or otherwise prohibit the ability of the CO to delegate below their level.   Just like the DFARS matter to DoD agency supplements matter to civilian agencies.

Carl, I agree with you.  It appears here that "local policy" appears to be questionable, hence the reason for the OP.  If you are newly assigned to an agency, don't rely on advice here only based upon the FAR and speculation that someone MIGHT have some approved deviation from policy, acquisition regulations, etc. to informally delegate contracting officer authority to a nonwarranted person or to waive the limits on the other person's warrant. 

 I see that the OP said that they researched the agency supplement.  Their agency may have other policies, procedures and rules for warranting KO's and for delegating KO authority. Also find out what your agency's policies are if they aren't in your FAR Supplement.  

The excuse that the KO delegated authority to a contract specialist to sign a contract because they were more familiar with the details and all the KO contributed was a review approval looks ridiculous to me.  

I have negotiated new contracts, mods, claims, termination settlements, takeover agreements, conducted source selections, etc. over a period of more than 45 years.  I never had a PCO, TCO or ACO tell me to sign their contract or modification because I knew more than they did about the action.  Of course I did but they were ultimately responsible for the action. 

We always had requirements for oversight and review of pre-negotiations objectives, source selection plans,   estimates, positions, negotiation memoranda, recommendations, etc. for a reasonably qualified contracting officer to supervise prior to, during and after and to make the final decision to approve and sign the contract action. 

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Don't swear at me, Vern.  Goodbye. 

 

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I already did swear at you. I KNEW you didn't have a reference.

Quote

I have negotiated new contracts, mods, claims, termination settlements, takeover agreements, conducted source selections, etc. over a period of more than 45 years.  I never had a PCO, TCO or ACO tell me to sign their contract or modification because I knew more than they did about the action.  Of course I did but they were ultimately responsible for the action. 

We always had requirements for oversight and review of pre-negotiations objectives, source selection plans,   estimates, positions, negotiation memoranda, recommendations, etc. for a reasonably qualified contracting officer to supervise prior to, during and after and to make the final decision to approve and sign the contract action. 

Who cares what you did in the past? That was then. This is now. How can you criticize a policy that you know so little about, of which you know nothing more than what was conveyed by a few sentences from someone new to the agency? Agencies have adopted all sorts of innovations, some good, some bad. Why criticize before you know all of the facts? That kind of thing is what makes innovation difficult.

DOD is big, with many contracting offices. Who knows who is doing what?

Yes, goodbye. The dead horse has rotted.

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