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bob7947

Different Titles for Contracting Officer's Representative

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1 hour ago, Todd Davis said:

They way I view it, just because I'm a CO, doesn't mean I have unlimited authority to change other CO's contracts anytime I want. 

Note that the FAR defines "CO" as an individual with "... the authority to make and administer contracts and to make determinations and findings with respect to contracts", so I would say you do have unlimited authority to change other CO's contracts anytime you want, within reason (i.e., your authority must be derived from the same source as the other CO).   COs change/back each other up all the time, with no 'CO novation' necessary.  I don't disagree with  the gist of your point; however, I think that professional courtesy is what drives not messing in your colleague's business, not legal implications.

 

1 hour ago, Todd Davis said:

If I'm appointed as a COR, my possession of a FAC-C certification and warrant is irrelevant.

So, for example, if your unlimited CO warrant allows you award a $100M contract , and your FAC-COR I allows you to administer a $1M contract, if you were to award and administer the contract as CO,  your authority to administer the contract would be unlimited, but you wouldn't be eligible to act as a  COR  for the same contract?   Doesn't that seem kind of absurd?

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1 minute ago, REA'n Maker said:

So, for example, if your unlimited CO warrant allows you award a $100M contract , and your FAC-COR I allows you to administer a $1M contract, if you were to award and administer the contract as CO,  your authority to administer the contract would be unlimited, but you wouldn't be eligible to act as a  COR  for the same contract?   Doesn't that seem kind of absurd?

Maybe I didn't articulate it well, but my point was that if I was appointed as a COR to do specific things, the fact that I have a warrant doesn't factor into the responsibilities I've been delegated.  I've only been delegated certain responsibilities by the CO for the contract (assuming those do not involve changing or terminating the contract) and those activities are all I should do because that is all that I was asked to do.  However, if was then asked by the CO or their supervisor to do something outside the COR delegation like issuing a modification or terminating the contract, I'd proceed with that action under my authority as a CO, not as a COR. 

I know realize the whole issue of appointing a CO as a COR should be unnecessary, since a CO can simply designate another CO as a ACO for a contract and define their responsibilities in that designation letter.

15 minutes ago, REA'n Maker said:

 COs change/back each other up all the time, with no 'CO novation' necessary. I don't disagree with  the gist of your point; however, I think that professional courtesy is what drives not messing in your colleague's business, not legal implications.

I agree.  I'm limiting myself by professional courtesy and organizational responsibility (not legal authority), since the contract is not assigned to me to act as the CO. 

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And what was that? Please remind me.

I was asking for information about the titles as my original post mentions.  Since it is for my own research, I didn't think anyone cared about that.  As you realize, titles are nothing more than that---titles.  However, they are a good starting point to begin a search--and that is the reason I menioned them in my original post.  As you explained, definitions and authorities are what is important.  Those definitions may be in FAR suplements and authorities may be spelled out in solicitations.   Those sources are free and online.  Additionally, years of BCA and court cases are online for free.  So, there are documents out there to pursue research on Wifcon.com's budget.  I already know my initial steps.

Any information provided in this topic, may reduce the time it takes and lead me to further research.  The titles I listed in my original post were from memory, as I stated, and date back to the 1980s.  While I was looking at the contracts and contract files from that era and from an assortment of agencies, I realized that the different title-holders were performing either the same or similar function.   I seem to remember back then that COTR was used more often than COR but that was a long time ago.  Many things have changed since then.  Back then, it was a victory finding an agency with a COTR, GTR, COR, Project Officer, etc. handbook.

What I am looking for in my research is a lot of different titles, performing the same or very similar functions, and causing problems in the contracting process.   Any type of disharmony will keep the research alive.  I expect I will be done in a year or so, if I feel it is worth continuing.

 

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Guest Vern Edwards

Bob:

For purposes of your research you might be interested in the 1927 decision U.S. v. A. Bentley & Sons Co., 15 F.2d 895 (Sixth Cir., 1927), in which I believe is to be found the first mention of the phrase "contracting officer's representative" by any federal court. The case was about an Army cost-reimbursement construction contract.

Headnote 8 reads as follows:

Quote

Whether constructing quartermaster was contracting officer's representative as respects army cantonment construction contract held dependent on his authorized acts, and not on his title.

According to the court (warning--archaic language):

Quote

The contract defines the contracting officer as any person to whom the duties of contracting officer may be assigned by the Secretary of War, or any duly appointed representative of that officer. The amendment says that the "work of constructing said cantonment was immediately in charge of a constructing quartermaster stationed at Chillicothe." It thus appears that the constructing quartermaster was given charge of the construction of the camp, and further, by other averments, that acting under authority of the government he approved and accepted the work of the contractor and repaid to it the cost thereof ‘form [sic] time to time as in said contract provided.‘ This the contracting officer or his representative alone had the right to and could do; this the constructing quartermaster did; and this the government approved and accepted as the work of a contracting officer. Whether the constructing quartermaster was a representative of the contracting officer does not [de]pend so much on the allegation that he was no[t], or on the title by which he was designated, as upon what he did at the instance and by the authority of the government. One cannot confer upon his agent the authority to do certain acts, accept and approve them as done, and thereafter repudiate such of them as he chooses solely because he withheld from the agent— perhaps here without the knowledge of the other party— the official or nominal title of the one or the class through whom he contracted to act. A mere name is not so potent. The petition alleges facts showing that the constructing quartermaster, by whatever name called, was a representative of the contracting officer. The legal effect of those facts cannot be destroyed by anything less than a positive and unmistakable showing of other facts to the contrary. This is not to be found in the averments of the amendment[.]

Emphasis added. Footnote omitted.

So, as you can see, the problem that you are researching is an old one.

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My ideal case, at this point, would assume something similar to the following:

  • contract manager not defined in any agency supplement and not defined in the contract,
  • defnition of contrating officer's representative (COR) as defined in the FAR,
  • contracting officer,
  • work performed by the contractor at the direction of the contract manager,
  • suit brought by the contractor claiming the contract manager was not a representative of the contracting officer because it was not a COR as defined in the FAR, there is nothing in the contract, etc.

It doesn't matter to me that a case is won or lost.  What is important is that a case is brought based upon an individual acting as a COR but with a different title.  At this point, a case does not matter.  It will take me a good amount of time searching for titles and defnitions in FAR supplements.

However, there is some hope when you look at the FAR definition of COR that includes a COTR, Carl's 2011 OFPP memo that thinks COTR is gone from the FAR, and FAIs thoughts.  I need to show disharmony exists which I am sure it does.  There are different title holders acting as CORs out there as this topic shows.  I need more than the proliferation of titles.  Some day, I might be able to prove there is a detrimental effect of this but that is somewhere in the distant future at this point.  And I may never get that far.

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Guest Vern Edwards
42 minutes ago, bob7947 said:
  • work performed by the contractor at the direction of the contract manager,
  • suit brought by the contractor claiming the contract manager was not a representative of the contracting officer because it was not a COR as defined in the FAR, there is nothing in the contract, etc.

Bob,

If the contractor performed the work at the direction of the contract manager, why would it file suit arguing that the contract manager was not a COR? Would't that be the government's argument?

Vern

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Yeah. :huh: My scenario was defective.  It's still early in the morning and I didn't sleep.     

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Guest Vern Edwards

We're retirees, Bob. We can sleep whenever we want. Get some sleep.

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1 hour ago, bob7947 said:

Some day, I might be able to prove there is a detrimental effect of this

Bob - I may not be following correctly but these thoughts occurred to me as I continue to read this thread.

1.  The determination of "detrimental effect" might include research of implied authority as in did a certain title other than COR lead  to an implied authority issue.

2.  I do wonder if clarification of actual authority through statute, regulation and case law has refined the view expressed in the 1927 decision noted and in effect circles back to the ideal that wouldn't it be nice if everyone called a person with contractual authority (with whatever stated limits) simply a "Contracting Officer".  Whether such ideal would prevent conflicts arising or related to a contract is the question and it seems it hasn't to date so probably never will.

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I am providing the following items from the FAR and HUD's agency supplement.  The first is from the FAR and discusses an aspect of the FAR System.  I think it is self-explanatory.  After reading all 3 excerpts, please answer the following question.  Do you believe the HUDAR is in compliance with the spirit of the FAR system.  Yes or No?

The following quote is from the FAR

Quote

1.304 Agency control and compliance procedures.

(b) Agency acquisition regulations shall not—

(1) Unnecessarily repeat, paraphrase, or otherwise restate material contained in the FAR . . .

The following quote is from the FAR and defines the COR.

Quote

2.101 Definitions.

(a) . . .

“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.

The following is from the HUD FAR supplement.

Quote

2402.101 Definitions.

"Government Technical Representative (GTR)" means the individual serving as the Contracting Officer's representative responsible for monitoring the technical aspects of a contract, including guidance, oversight, and evaluation of the Contractor's performance and deliverables.  (emphasis provided)

 

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No

HUD appears to have concluded through the regulatory process to have the GTR be the go to person for both administration of contracts FAR and grants and cooperative agreements.   

24 CFR 115.100 “Government Technical Representative (GTR) means the HUD staff person who is responsible for the technical administration of the FHAP grant, the evaluation of performance under the FHAP grant, the acceptance of technical reports or projects, the approval of payments, and other such specific responsibilities as may be stipulated in the FHAP grant.”

I wonder how  HUD adequately demonstrated how the change of COR to GTR is necessary to implementing the FAR specific to the needs within HUD

FAR 1.302 -- Limitations. Agency acquisition regulations shall be limited to --

(a) Those necessary to implement FAR policies and procedures within the agency; and

(b) Additional policies, procedures, solicitation provisions, or contract clauses that supplement the FAR to satisfy the specific needs of the agency.

In the end HUD seems to admit that their use of GTR is inconsistent with the FAR but what the heck!   Reference - see the definition of COTR in this document -----

http://afgecouncil222.com/B/8fac-cotrart5.pdf

 

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Carl:

If you go down to 1.6 of the HHSAR, you will see a use of COTR and a mention of project officer's appointed by program managers . . .  I think it mentioned project officer's acting as COTRs too.  It takes some effort to figure it all out.  Then HHSAR's part 2 defines COR.  I think these supplements contain a mixture of the past and near present ideas.  

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I have a contract at DISA that designates an ACOR and TCOR (which is really meant to be COTR, but named in the same format as the previous).

Administrative COR and Technical COR.

I find this odd and I've only see it done once, on this particular contract.

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