The case I relate in this article is an illustration of the authority that is vested in a contracting officer and the discretion that the CO can exercise in the course of executing their duties, i.e., the obligation of US Treasury funds to procure essential goods and services for the government. This is a small point but serves to highlight the interesting deviations that can be made.
While still on active duty with the Army, I was assigned to be the Contracting Officer for an annual training exercise in the country of Jordan. The exercise involved a US Army brigade’s staff, working in concert with a Jordanian army staff in a simulated Command Post Exercise (CPX). To do this, certain staff members had to travel to Jordan two or three times for planning conferences, and then an extended three-week stay for the entire staff for the exercise to be conducted. My task was to award contracts for hotel rooms, rental cars and rental cell phones for the American personnel to use during the exercise. I went to two of the planning conferences and got very clear definitions of the requirements for the exercise, in terms of number of hotel rooms, duration of stay, number of rental cars, and number of cell phones. Key to my effort was coordination with the US Embassy, to get tax considerations from the Jordanian government, government rates for the hotel rooms, and business clearance and finance exchange rate approval for the eventual payment of funds. I prepared draft contracts for the requirements and was ready to go when the time for the exercise came.
The day we got to Jordan for the actual exercise, the plan changed, and therefore the requirements did too. For the entire three-week exercise, the number of personnel on site, and therefore the number of hotel rooms that we needed, changed on an almost daily basis. My approach in dealing with this chaos was to do continual coordination with the hotel staff and keep track of the daily room usage, but to hold off on signing the actual contract. The hotel did not mind the changes, as that is their typical mode of operation anyway. In fact, imposing a contract on the hotel in place of the typical personal interaction seemed to them to be additional busywork anyway, as guests usually just check out and charge their lodging expenses to their credit cards. Had I signed the contract award on day one, I would have ended up preparing and issuing twenty or more modifications, as the personnel numbers changed from day to day.
Instead, I essentially gave verbal orders to the hotel, and when the dust settled and we had a good record of how many people stayed in the hotel per day, I prepared one final contract with accurate numbers, after the fact, and then signed it with the hotel. Experienced contracting professionals see the simplicity and utility of this approach and would probably find it odd to not do it that way. But the Army Colonel who led the exercise was very nervous that the contract had not been signed ahead of time. Evidently, he was concerned that we would not get fair pricing, or maybe would lose rooms, or whatever. Of course, the hotel did not care – they do not take payment until checkout anyway, so it was normal to them. In addition, I was comfortable doing it, as I had witnessed a Contracting Officer do the same thing when I was new to the career field. In that instance, an Army unit had requested a contract to pay a mental health professional to provide training at a unit event; they had the funds and the correct procedures were followed, but the contracting process took too long. It was only a $5,000 fee, and the CO knew the contract would eventually be prepared, so she gave a verbal order over the telephone, and we followed up the next week with the actual contract. So, I was comfortable that my authority as a warranted CO could enable the deal with the hotel, and after the exercise concluded, we could settle with one simple, accurate contract.
In the end, the contract only served as a bulk payment method, rather than two dozen military personnel charging their rooms to their individual government credit cards. I was only able to negotiate small amenities, like complimentary water bottles in the rooms – the rates were fixed by the government agreement with the Embassy. The lodging costs totaled about $60,000, and I obligated those dollars without a contract in place, not even a letter contract (which is permitted under the FAR). This example illustrates the latitude and discretion that a contracting officer may exercise. Provided the CO has approved funding, he or she can obligate funds up to the limit of their warrant, even ahead of negotiated terms and conditions. It is not always advisable, but the authority is there, and Contracting Officers are selected and trained to use that authority to help the government agencies accomplish their respective missions.
Managements’ heads at the agency I use to work for would explode if they were to read this! They could not comprehend such an act. In fact, the CO would probably lose his or her warrant. It is great to see some agencies allow their COs to make business decisions that make sense with a focus that allows the mission to be accomplished. My previous agency acted as if “contracting” was the mission, not a supporting activity that allows the the “front-line” to accomplish the real mission.
Michael, thanks for the reply, I really appreciate the feedback. I am familiar with the exceedingly anal-retentive approach you mention; you nailed the issue: the agency leadership views contracting as “the mission” instead of an enabling function to accomplish the mission. I can understand the nervousness – contracting is complex, and everybody worries about money and accountability and the dreaded “60 Minutes” report on possible fraud, waste and abuse. But it’s dismaying to learn that they cannot learn the value of sensible business judgment, and the simple fact that the FAR has been gradually revised to be a very permissive authority. If the FAR does not explicitly prohibit an action, then it is permitted, up to the limit of the CO’s authority.
Of course, they are the leaders, and they have the latitude to be overly restrictive, even to the detriment of the agency, the personnel, and most importantly, the mission. I’m just glad I didn’t have to work in that environment!
Interesting how you both view this subject. My view is that Tim’s actions in the field were appropiated given the location and circumstances. The DoD has a contingency contracting officer course which focuses on foward deployed activities and dealing with local suppliers and customers, Much more lattitude is given to accomplising the mission when foward deployed.
When you get back to the real world, agencies are still mission focused but the rules that exist in the FAR and DFARS need to be followed. Contracting offiers have lattitude in everyday situations to be innovative to solve issues. I have written before that a willingness to take “risk” is something that a good CO is not taught. It comes frome experience and the better ones learn from their mistakes ( we all make them).
However, having worked in DoD for 32 years I have come into contact with more than one miitary officer who didn’t want to have to deal with the acquisition process, cause by god he was going to support the warfighter, no matter the rules. Funny how their name isn’t going on the contract and so they quickly learned the limits of their authority. It is actually a good system of checks and balances. In most major acquisition commands contracting personnel are in a seperate chain of command from the PM., becuase the CO has to be able to say” no sir hat is against the regs” and not fear retribution.
Thanks Steve, I agree completely about the empowerment to take risks being a critical component of a CO’s outlook, and is usually not trained. As a military officer first, I had developed at least a decent (internal) risk assessment system, but as I grew as a CO, I gradually learned that the FAR is a permissive document. One particularly sharp mentor likened it to the US Constitution, in that if an action is not specifically prohibited, then the spirit of the document is to allow freedom, initiative and innovation. But yes, in most cases, my formal training was “here’s what the FAR says, just do that.” Which really doesn’t help resolve the myriad of decisions faced by a CO when attempting to accomplish the mission.
And you’re exactly right about the typical non-acquisition officers – they are all about “accomplishing the mission,” and not in the least concerned about breaking the rules, because it’s not their name on the paper. I’m a firm believer that the contracting professional must not work for the requiring activity, for that very same reason – it’s just too easy to exert influence that violates procurement integrity. And so just as it helps a CO to be a little daring, it also helps a CO to have the courage to tell a customer “No, sir, we cannot do it that way, but if you give me some time and support, I can find a way to do it the right way.”