| ::: Frequently Asked Questions:: |
 |
Frequently Asked Questions |
Q: What is the difference between "ACTUAL AUTHORITY" vs "APPARENT AUTHORITY"?
A: Only persons with ACTUAL authority, that is formal, delegated authority, can bind the Postal Service. The concept of "apparent authority" which prevails in the commercial world does not apply to federal government contracting. The real estate specialist, for example on a lease-build project, who is sent out to conduct business for the Postal Service with members of the public, despite his/her apparent authority to act on behalf of the agency, cannot bind the Postal Service beyond any actual delegated authority he/she may have. Nor can a project manager or A-E assigned to supervise a construction project change the scope of work so as to affect the Postal Service's cost or alter the duration of the contract. If an agent of the Postal Service has no delegated authority, his/her representations, commitments, promises do not bind the Postal Service.
Only a postal representative with authority to modify a contract can relax contract requirements. Only one with authority can enter into an oral contract or an "implied" contract..
Persons dealing with the government are charged with knowing regulations that apply to their transactions. Such persons assume the risk that agents of the government may exceed their authority or provide misinformation, and it is the contractor who must inform himself/herself of the actual authority of the postal employee or agent with whom he/she deals. The purpose of this seemingly harsh rule is to protect the government and public funds from the unauthorized acts of government employees, even though uninformed or badly informed nonpostal individuals may suffer.
Q: What is "IMPLIED ACTUAL AUTHORITY"?
A: It may sometimes be found that the circumstances surrounding a government agent's actions sufficiently indicate or imply the existence of actual authority. It may be assumed that a project manager sent by the contracting officer to the site to solve a particular problem has authority to do so and his/her directions may commit the government to pay for extra work. This is not because of his/her appearance as an agent; rather it is because the circumstances support a finding of actual authority specifically delegated by the contracting officer. There is one case that suggests an A/E, authorized to approve submittals, has implied authority and his/her approval may bind the Postal Service. Other cases suggest that when a contracting officer delegates responsibility for giving guidance or instruction to the contractor about specification problems, the government will be liable for the consequences of the guidance given.
Q: What are the "LIMITS" on authority?
A: Actions and commitments of a contracting officer are limited by the laws and regulations governing postal procurement. For example, a contracting officer does not have authority to enter into a contract with a debarred contractor or a postal employee. The contracting officer may not enter into a modification to a contract giving something of value to the contractor and getting nothing in return. A contract modification that affects the parties' substantive rights is not binding unless supported by consideration. For example, a contracting officer's promise to pay for vandalism to construction work in progress was inconsistent with the contract and not enforceable as it was made without consideration.
Q: Who has the ultimate responsibility for contracts?
A: The contracting officer is responsible for the contracting actions he takes. The Procurement Manuel states:
"While contract administration requires the efforts and skills of many people, the contracting officer is ultimately responsible for all contract administration functions." It is reasonable and necessary for a contracting officer to rely on the advice of other members of the contract team---the project manager, real estate specialist, A-E, counsel, and others---but contract decisions are ultimately made by the contracting officer.
A well-informed and reliable team is an essential source of the information needed by the contracting officer to make sound decisions.
The contracting officer must exercise care and have in place procedures that will ensure correct decisions. The importance of maintaining written records cannot be emphasized too strongly. A stranger to the contract and its files should be able to get a full and accurate picture of the award and administration by reviewing the files. All actions, justifications, explanations, negotiations, and other contract-related events should be memorialized. Although A-E's, project managers and others may be assigned to keep records, it is ultimately the contracting officer's responsibility to ensure it is done.
