If agency doesn't have authority, how can it delegate that authority to a contractor?

Go to the GAO Red Book, 4th Ed., 2016 Rev. and read Ch. 2, "The Legal Framework." In order for an agency to hire a contractor to do something it must have congressional authorization and an appropriation. Sometimes the authorization is provided separately and sometimes it is included in the appropriation act.

Thanks, Vern!  Well, I looked at the GAO Red Book section that you cited.  While I do see the authorization vs appropriation legislation discussion in there, it still doesn't exactly answer the question, "Can the USG have a contractor do something that the USG does not itself have power/authority to do?"  It seems like an obvious answer, but I really want to find support for it somewhere.  I also looked at the GAO Red Book in the Purpose section (Chapter 3), and I found nothing helpful in there.  Maybe the answer is so obvious that it has never come up before?  Here is the link to the GAO Red Book, https://www.gao.gov/legal/appropriations-law/red-book.

Oh wait, in the GAO Red Book, Chapter 3, Purpose, it kind of does address my question.  31 USC 1301(a) says that appropriated funds can only be used for the purpose they were appropriated for:  "Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.."  But this sounds more like it is intended to address the situation where an agency purchases something it is not allowed to purchase, such as "insurance" (the GAO Red Book says agencies are prohibited from purchasing insurance).  What if an agency is required to comply with a statute, but then the agency hires a contractor do something that violates that statute, can the agency take the position that the agency didn't violate the statute, it was only the contractor that did the action in question, and since the statute doesn't apply to the contractor, there is no violation?  I now this sounds non-sensical, but I have to look into this and run it down to the end.  If anyone knows of any court decisions on this topic that involve an agency hiring a contractor to do a task that the agency does not have authorization to do (or rather, the agency will be violating a statute if it does this thing itself), please post it.

govt2310,

Have we talked about this matter before?  A while back, someone was talking about whether a contractor's violation of law sticks to the agency or to the contractor -- am I recollecting rightly?

2310, if an agency can’t legally do something, how can it hire a contractor for the specific purpose to do that?

@govt2310:

I am not going to do any caselaw research for you. I suggest that you read Formation of Government Contracts, 4th ed., Ch. 1, Basic Principles of Federal Procurement, Sec. II., Contracting Powers. Also see FAR 1.602-1(b).

Absent a specific example of the kind of thing you are talking about, that's the best I'm going to do for you.

@ji20874:

I don't recall talking about this issue before. 

@joel hoffman:

I know, it seems obvious that, if an agency can't do something, how can it make a contractor do it?  But it has been put on my plate confirm whether this is allowed or not.  I didn't come up with the question.  But I am stuck with the task of finding the answer.

@ Vern Edwards:

I understand.  Ok, I have the Formation of Government Contracts book here at home and will take a look.  I will also look at that FAR cite.  Thank you.

Let's say an agency wants to do "information collection."  The agency needs to do a survey of people at universities, non-profits, and places like that to find out how best to design a research project.  Can the agency pay the survey participants an "incentive" fee or an honorarium?  Can an agency hire a contractor to do this information collection, and just say in the solicitation, we leave it to the contractor to figure out how to get participants to participate in the survey, and that this can include the contractor paying "incentives" to the survey participants?  Also, assume that this information collection does not involve "identical questions," and does not involve asking such "identical questions" to more than 9 people, so therefore, the Paperwork Reduction Act doesn't apply.

Have you talked to these folks...

https://www.bls.gov/cex/gemini-incentives-outlets-test.htm

govt2310 said:

Let's say an agency wants to do "information collection."  The agency needs to do a survey of people at universities, non-profits, and places like that to find out how best to design a research project.  Can the agency pay the survey participants an "incentive" fee or an honorarium?  Can an agency hire a contractor to do this information collection, and just say in the solicitation, we leave it to the contractor to figure out how to get participants to participate in the survey, and that this can include the contractor paying "incentives" to the survey participants?  Also, assume that this information collection does not involve "identical questions," and does not involve asking such "identical questions" to more than 9 people, so therefore, the Paperwork Reduction Act doesn't apply.

Do you think that the Government can't pay people for participating in a survey?

@C Culham Thanks for the bls.gov link!

@Don Mansfield In an OMB Memo issued in 2006, Q&A on the Paperwork Reduction Act (PRA), at question # 75, it talks about how incentives in Federal Government surveys have "raised a variety of concerns about their cost, the use of taxpayer funds, impact on survey responses" etc.  So the PRA of 1980 prohibited the use of incentives for respondents to Federal surveys "unless agencies could demonstrate a substantial need."  So it is possible for an agency to pay incentives, but it has to be justified.  Now that I am seeing this OMB Memo, I guess it answers my own question: yes, an agency does have authority to pay incentives to respondents for Federal surveys, but only on the condition that the agency "demonstrate a substantial need."  Therefore, an agency can have a contractor do the surveys and pay the respondents, but the agency has to "demonstrate a substantial need" first.  Oh, and it looks like this only applies if there are "identical questions" and more than 9 people doing the survey.  So if the questions are NOT identical, and there are fewer than 9 people doing the survey, then the Paperwork Reduction Act doesn't apply.  Therefore, an agency, in that scenario, wouldn't need to demonstrate substantial need before proceeding.  Does anyone see a flaw in my reasoning?

No, I don't.

The opening post:

On 7/27/2021 at 10:57 AM, govt2310 said:

It seems like common sense to me that, if the U.S. Government doesn't have authority to do something, it cannot hire a contractor to do it.  However, I cannot find any law, regulation, or court decision that says this.  Does anyone know of any?

The most recent post:

govt2310 said:

In an OMB Memo issued in 2006, Q&A on the Paperwork Reduction Act (PRA), at question # 75, it talks about how incentives in Federal Government surveys have "raised a variety of concerns about their cost, the use of taxpayer funds, impact on survey responses" etc.  So the PRA of 1980 prohibited the use of incentives for respondents to Federal surveys "unless agencies could demonstrate a substantial need."  So it is possible for an agency to pay incentives, but it has to be justified.  Now that I am seeing this OMB Memo, I guess it answers my own question: yes, an agency does have authority to pay incentives to respondents for Federal surveys, but only on the condition that the agency "demonstrate a substantial need."  Therefore, an agency can have a contractor do the surveys and pay the respondents, but the agency has to "demonstrate a substantial need" first.  Oh, and it looks like this only applies if there are "identical questions" and more than 9 people doing the survey.  So if the questions are NOT identical, and there are fewer than 9 people doing the survey, then the Paperwork Reduction Act doesn't apply.  Therefore, an agency, in that scenario, wouldn't need to demonstrate substantial need before proceeding.  Does anyone see a flaw in my reasoning?

Reasoning? What reasoning? How do those posts even relate? 🤪

Please don't try to explain. It will only make things worse. 😆

"Reasoning." 🤣