Is it permissible for a government employee, who is not a contracting officer, to direct the vendor to ship the order to the respective freight forwarder/consolidation point via email? What FAR references apply?
This is a fantastic question. I’m going to give you the “technical” answer first followed up with a “let’s be realistic and try to do what’s right” answer.
Open full Question Details
In the background you provided, at least shipments are being returned to vendors and NOT ending up as frustrated cargo at some APOD with no way of knowing where it is supposed to go and/or be returned to.
Technical Answer: “No, it is not permissible for a non-contracting officer (KO) to direct a vendor ship the order to the respective freight forwarder/consolidation point via email.” BUT, this assumes two things:
1) The contract document specified a different TAC 1 address than what the e-mail will/would direct, and
2) The contract document does NOT include any language saying something along the lines of “a government representative is authorized to provide an updated freight forwarder/consolidation point address if…”
The reason is because the e-mail direction would be a change to the contract/order and would require a modification and only the KO is authorized to do this. The FAR reference is 43.102 in its entirety. The KO could easily specify the new (or should I say better and correct) delivery address via a Change Order which would be authorized under the contract/order Changes Clause; 52.243-1 thru 5 depending on contract type. Caution: government has no authority to issue a change order unilaterally if the commercial contract format is used [see 52.212-4(c)].
Possible Solution Answer: Send the e-mail with the correct/updated information that will ensure the intended recipient receives the order! The vendor wants the right unit/individual to get the order, they don’t want spend time (which equates to money) having to figure it out. When the individual sends the information they should include language similar to the following:
“You are hereby notified that I DO NOT have the authority to direct you in any way to alter your contractual obligation. If you consider this guidance to be a change or alteration of the requirement, take no action and contact the contracting officer immediately to request a contract modification.”