1. The acquisition regulation references quoted below in pertinent part are applicable to this response:
FAR 2.101 -- Definitions
“Contracting officer” means a person
with the authority to enter into, administer, and/or terminate contracts and make related determinations and findings.
FAR 3.104 -- Procurement Integrity
FAR 3.104-7 – Violations or Possible Violations
(g) The HCA may delegate his or her authority under this subsection to an individual at least one organizational level
above the contracting officer and of General Officer, Flag, Senior Executive Service, or equivalent rank.
NMCARS 5233.103 -- Protests to the agency [implementation of FAR 33.103]
(d)(4) HCAs are responsible for establishing procedures for handling requests made by interested parties for an independent review of their protest at a level above the contracting officer. In addition, for purposes of this paragraph, a “level above the contracting officer” means the CCO [Chief of the Contracting Office] or, if the CCO is less than two levels higher than the contracting officer, the Chief of the next higher contracting office
Engineer Federal Acquisition Regulation Supplement (EFARS) [Army Corps of Engineers]
EFARS 2.101 -- Definitions
Level higher than the contracting officer. When a District chief of contracting is the contracting officer, a "level higher than the contracting officer" means the Division or Center Director of Contracting. When an operating Division, Center, or Laboratory Director/Chief of Contracting is the contracting officer, a "level higher than the contracting officer" means the PARC.
CAR Subpart 1315.3—Source Selection [Dept. of Commerce Acquisition Regulation]
CAR 1315.303 Responsibilities
The source selection authority for large dollar competitive negotiated acquisitions of $10,000,000 or more is the head of the operating unit. The head of the operating unit may re-delegate the authority to a Department manager who is at an organizational level
above the contracting officer and who has sufficient rank and professional experience to effectively carry out the functions of a source selection authority.
Forest Service Acquisition Regulation
Part 4G02--Definition of Words and Terms
4G02.101 -- Definitions
"Level above the contracting officer" means a supervisory contracting officer
. If the contracting officer is the highest level contract specialist or purchasing agent on the unit, this term means the acquisition warranted employee in charge of the procurement function at the next higher organizational level
within the acquisition organizational levels of authority.
2. Our research also did not yield any official definition for the term “level above contracting officer” in the FAR or DFARS. However, as stated in FAR 3.104-7(g), NMCARS 5233.103(d)(4), EFARS 2.101, CAR 1315.303,
and FS 4G02.101
described above, this term is clearly defined as referring to the organizational and supervisory levels of the contracting activity. Therefore, in similar fashion, we believe that when the term “level above contracting officer” is read in other contexts as set forth in the regulations, it really can only be referring to the organizational or supervisory chain of command in both DoD and civilian contracting organizations.
3. Furthermore, in their response to a similar question submitted to wifcon.com on the same day as this inquiry, Government contracting experts in that forum also opined that the term “level above contracting officer” is generally understood to refer to a supervisory or organizational level, either defined as such or implied by internal agency policy.
4. Based on the above, we believe the term “level above contracting officer” clearly does not mean that simply anyone
with greater warrant authority is considered to be at a "level above” any particular contracting officer. Additionally, as stated in FAR 2.101
, a Contracting Officer is a “person” with the authority to enter into, administer, and/or terminate contracts. While particular buying command policies will vary, we believe that at the higher levels of an agency’s contracting function (e.g., the CCO), these officials tend not to be warranted contracting officers because they are typically not the “persons” who actually enter into, administer or terminate contracts. Therefore, we also believe that higher level managers in the contracting chain of command may not necessarily have actual warrant authority, but are still vested with the authority under the regulations to approve/disapprove certain contemplated transactions submitted to them by warranted contracting officers.