Acquisition Cards and Lawful Orders

[Halifax Tar]

An interesting debate broke out in my Sup Tech circle of friends.  The question is can a Cpl be compelled by order, issued by a commissioned officer, to use the CAF Acquisition Card (Military credit card for LPO purchases) that was issued to the Cpl in a manner that goes against the rules and regulations as laid out in the Financial Admin Manual (FAM), Procurement Admin Manual (PAM) and Supply Admin Manual (SAM) ?

Would that order be considered a lawful command ? 

I argued that it would not be a lawful command as it is ordering the junior member to put his/her purchasing accreditation in jeopardy and possibly face admin or disciplinary action if their purchases are caught and audited. 

Thoughts ?

 

[the 48th regulator]

An interesting debate broke out in my Sup Tech circle of friends.  The question is can a Cpl be compelled by order, issued by a commissioned officer, to use the CAF Acquisition Card (Military credit card for LPO purchases) that was issued to the Cpl in a manner that go against the rules and regulations as laid out in the Financial Admin Manual (FAM), Procurement Admin Manual (PAM) and Supply Admin Manual (SAM) ?

Would that order be considered a lawful command ? 

I argued that it would not be a lawful command as it is ordering the junior member to put his/her purchasing accreditation in jeopardy and possibly face admin or disciplinary action if their purchases are caught and audited. 

Thoughts ?

That would be akin if the officer ordered you to fire a rifle illegally at a Capitulating enemy.

The rank does not dictate the rule, and anyone can question an in lawful order.  In this case, the officer is using a card, issued to a Cpl. (who is responsible) to perform his needs.  Wrong.

dileas

tess

 

[ModlrMike]

Unless said officer has Sect 32 authority over the budget to which the expenditure will be charged, has completed the Expenditure Management Control course, and has had expenditure authority delegated from the CO (in writing)... then no. Your Cpl in this instance is under no obligation to follow the order.

Of course, even if the officer has all three of the items listed above, if the order contravenes the directives, then also no.

 

[SupersonicMax]

In order to not obey an order, it must be clearly unlawful. In order to be unlawful, it needs to be illegal.  I would say if it contravenes law (not regulation), then it is unlawful.

19.015 - LAWFUL COMMANDS AND ORDERS

Every officer and non-commissioned member shall obey lawful commands and orders of a superior officer.

(M)

NOTES

(A) The expression "superior officer" includes a non-commissioned member. (See article 1.02 - Definitions.)

(B) Usually there will be no doubt as to whether a command or order is lawful or unlawful. In a situation, however, where the subordinate does not know the law or is uncertain of it he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful.

(C) An officer or non-commissioned member is not justified in obeying a command or order that is manifestly unlawful. In other words, if a subordinate commits a crime in complying with a command that is manifestly unlawful, he is liable to be punished for the crime by a civil or military court. A manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal; for example, a command by an officer or non-commissioned member to shoot a member for only having used disrespectful words or a command to shoot an unarmed child.

 

[ModlrMike]

In order to not obey an order, it must be clearly unlawful. In order to be unlawful, it needs to be illegal.  I would say if it contravenes law (not regulation), then it is unlawful.

True, but the above example not only contravenes the FAM, it contravenes the Financial Administration Act... so therefore still an illegal order.

 

[MJP]

The Acq card at the end of the day is just a payment tool and if something is req and can be justified (Op need for example) and all other fin aspects are observed then I can see it happening.  In fact, I have seen it happen and upon PPV no issues were raised because all the ducks were in a row.  It would however truly depend on the case at hand, as it is never clear cut and to say every use outside the bounds of Acq Card is ILLEGAL is bit much as there are always shades of grey.

 

[Halifax Tar]

Unless said officer has Sect 32 authority over the budget to which the expenditure will be charged, has completed the Expenditure Management Control course, and has had expenditure authority delegated from the CO (in writing)... then no. Your Cpl in this instance is under no obligation to follow the order.

Of course, even if the officer has all three of the items listed above, if the order contravenes the directives, then also no.

Say in a QM sense.  The QM would/should have the prerequisite courses, but orders the Cpl to purchase civilian clothing with the CF Acquisition card for members of the regiment.  Clothing for instance is an item we are not supposed to LPO but it happens and if ordered is it a lawful command ?  This is the conundrum we are debating. 

 

[Halifax Tar]

The Acq card at the end of the day is just a payment tool and if something is req and can be justified (Op need for example) and all other fin aspects are observed then I can see it happening.  In fact, I have seen it happen and upon PPV no issues were raised because all the ducks were in a row.  It would however truly depend on the case at hand, as it is never clear cut and to say every use outside the bounds of Acq Card is bit much as there are always shades of grey.

Very true.  LPO is all kinds of shades of grey with really little black and white.

 

[the 48th regulator]

Say in a QM sense.  The QM would/should have the prerequisite courses, but orders the Cpl to purchase civilian clothing with the CF Acquisition card for members of the regiment.  Clothing for instance is an item we are not supposed to LPO but it happens and if ordered is it a lawful command ?  This is the conundrum we are debating.

What is the Cpl.Authorized to purchase, a) Who is his signing Authority b)

This post right here, by ModlrMike, answered your question.  You can bring up civvy clothes, rubber duckies or any other compassionate means, this is not an episode of a sitcom.

Unless said officer has Sect 32 authority over the budget to which the expenditure will be charged, has completed the Expenditure Management Control course, and has had expenditure authority delegated from the CO (in writing)... then no. Your Cpl in this instance is under no obligation to follow the order.

Of course, even if the officer has all three of the items listed above, if the order contravenes the directives, then also no.

dileas

tess

 

[MJP]

Say in a QM sense.  The QM would/should have the prerequisite courses, but orders the Cpl to purchase civilian clothing with the CF Acquisition card for members of the regiment.  Clothing for instance is an item we are not supposed to LPO but it happens and if ordered is it a lawful command ?  This is the conundrum we are debating.

In this case figure out at what level of HQ it can be authorized at and push the issue up.  The QM at the unit level shouldn't be making that call on their own.  Usually though it is pressure from within the unit so the proper thing for the QM to do is temper expectations, while giving them the steps they can take to be able to conduct that purchase. 

While not common this happens from time to time and I have seen Acq Card usage for things of this nature.  Again it really depends on what the item are and the urgency required that other better routes can't be taken.

 

[Halifax Tar]

What is the Cpl.Authorized to purchase, a) Who is his signing Authority b)

This post right here, by ModlrMike, answered your question.  You can bring up civvy clothes, rubber duckies or any other compassionate means, this is not an episode of a sitcom.

dileas

tess

Its not that cut and dry.  Clothing, for instance, is great example of something we are explicitly told and taught that we are not allowed to buy.  What about HAZMAT, over the allowable QTYs ? iPads, Radios, Airsoft guns.  All things I have seen troops been ordered to purchase but also things I know we are not allowed to use our acquisition cards for.  So what happens if Cpl A is a stickler for the rules and puts his/her foot down ?

The issue that also arises is what happens when the Cpl follows the order and gets audited and its discovered.  I would hope the QM or other officer would throw themselves under that bus, but all ranks and trades have all kinds of people.

 

[Halifax Tar]

In this case figure out at what level of HQ it can be authorized at and push the issue up.  The QM at the unit level shouldn't be making that call on their own.  Usually though it is pressure from within the unit so the proper thing for the QM to do is temper expectations, while giving them the steps they can take to be able to conduct that purchase. 

While not common this happens from time to time and I have seen Acq Card usage for things of this nature.  Again it really depends on what the item are and the urgency required that other better routes can't be taken.

So purchasing rules are broken acceptably, on a case by case basis ?  Not arguing just trying to nail down your thoughts.

 

[brihard]

Personally, if I was confident that the order was unlawful, I would say as much, and if pressed on the issue, push it up the chain. If the Cpl knows his stuff on FAA and purchasing, he may be qualified to consider the order 'manifestly unlawful'. Make in the RQ's problem, and document the issue in an email to the appropriate parties in the unit.

 

[SupersonicMax]

Its not that cut and dry.  Clothing, for instance, is great example of something we are explicitly told and taught that we are not allowed to buy.  What about HAZMAT, over the allowable QTYs ? iPads, Radios, Airsoft guns.  All things I have seen troops been ordered to purchase but also things I know we are not allowed to use our acquisition cards for.  So what happens if Cpl A is a stickler for the rules and puts his/her foot down ?

If Cpl A puts his foot down for something that is not a law (does it say in the Act you can't buy X?), I think that person could be charged.

I personally have a 1 pushback rule to my superiors (up to 2 above in the position I am employed): if asked to do something and I don't think it's right, I'll chalenge the individual once with an explaination,  if the individual then comes back with "thanks but no thanks", I put my feet together and execute the order.  If a Cpl or any non-immediate subordinate pressed me more than once on the same issue, I'd lose my patience fairly quickly. But, unless I am well versed on the issue, I normally dig a little deeper on the issue before I reply to the challenge...

 

[the 48th regulator]

Its not that cut and dry.  Clothing, for instance, is great example of something we are explicitly told and taught that we are not allowed to buy.  What about HAZMAT, over the allowable QTYs ? iPads, Radios, Airsoft guns.  All things I have seen troops been ordered to purchase but also things I know we are not allowed to use our acquisition cards for.  So what happens if Cpl A is a stickler for the rules and puts his/her foot down ?

The issue that also arises is what happens when the Cpl follows the order and gets audited and its discovered.  I would hope the QM or other officer would throw themselves under that bus, but all ranks and trades have all kinds of people.

It is that cut and dry, and I have carried one for a decade.

Further, the Cpl is liable though his credit rating, therefore, the Officer is inringing on the Cpls Personal credit, and committing fraud.

Sorry, no such thing as "Special" this is not a novel about SAS running wild in the desessert..."Its not that cut and dry" in your scenario does not play out.


dileas

tess

 

[Halifax Tar]

It is that cut and dry, and I have carried one for a decade.

Further, the Cpl is liable though his credit rating, therefore, the Officer is inringing on the Cpls Personal credit, and committing fraud.

Sorry, no such thing as "Special" this is not a novel about SAS running wild in the desessert..."Its not that cut and dry" in your scenario does not play out.


dileas

tess

Is it possible for you to post on any topic without a hint of condescension ?  If you want to pick a fight go back to the pot debate.

On the topic at hand, we actually agree.  I misinterpreted your post(s).

 

[the 48th regulator]

Is it possible for you to post on any topic without a hint of condescension ?  If you want to pick a fight go back to the pot debate.

On the topic at hand, we actually agree.  I misinterpreted your post(s).

Roger,

Sorry that was not my intent. I will walk away.  Hope you find the answer you are looking for.

dileas

tess

 

[MJP]

So purchasing rules are broken acceptably, on a case by case basis ?  Not arguing just trying to nail down your thoughts.

Many of the restrictions on Acq Cards are in regulations laid out by DND/CAF.  Regulations are not law and can be circumvented if proper authority is given. 

To be clear below are the TB restrictions on using Acq Cards.  Note many of the restrictions that are being used as examples are not listed because at the end of the day a Acq Card is a payment tool.  A tool that can be used to pay for goods/services obtained for the government of Canada and its agencies.  We have further restricted that usage but that also means we control the ability to ease those restrictions.

http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=32504

B.2.2.1.4.3Cards, including convenience cheques, are not used for the following:
B.2.2.1.4.3.1Operating and maintenance expenses of fleet vehicles, except vehicle licence fees, routine procurement of vehicle supplies for the sole purpose of accumulating an inventory of items (e.g., batteries, tires, oil, filters, spare parts) or when a fleet credit card is not accepted by a supplier;
B.2.2.1.4.3.2Travel status-related expenses;
B.2.2.1.4.3.3Obtaining cash advances; and
B.2.2.1.4.3.4Interdepartmental transactions, except for transactions with CORCAN, which is a special operating agency of Correctional Service Canada;

The issue that also arises is what happens when the Cpl follows the order and gets audited and its discovered.  I would hope the QM or other officer would throw themselves under that bus, but all ranks and trades have all kinds of people.

Any purchase that is contrary to our regulations should be documented and the various email chains and permissions should be put on the contracting/purchase file.

 

[Gunner98]

Same link but more definitive,

Cardholders are responsible for the following:
B.2.2.4.1  Ensuring that their name appears on the card, and that they are the only one who uses it to make authorized government business-related purchases of goods and services, subject to the requirements and established limits in the departmental delegation of spending and financial authorities documents;


In what way are the "civilian clothing...for members of the regiment." government business-related purchases?  Unless the Cpl and QM are members of a CSOR, IO or HUMINT-like unit in which the members wear civilian clothes to perform operational tasks.

 

[MJP]

Same link but more important,

Cardholders are responsible for the following:
B.2.2.4.1  Ensuring that their name appears on the card, and that they are the only one who uses it to make authorized government business-related purchases of goods and services, subject to the requirements and established limits in the departmental delegation of spending and financial authorities documents;

I don't think anyone is arguing that the purchase has to be duly authorized, the TB isn't going to care that we bought textiles (clothing in the OP's example) as there are no TB restrictions on that form of usage.  We would care if a unit had a habit of just going out and buying go faster multicam pants because it circumvents DND (or below see CANARMYGEN 022/10) regulations.  If that unit had a requirement for go faster pants and had authority for their purchase then there are no issues.  One can argue that there are better procurement methods out there for these sorts of things but at the end of the day the Acq card usage isn't the issue but the procurement method.  Acq Card is merely the payment tool.

On the financial side of the house regardless of the purchase all fiduciary responsibilities have to be fulfilled (Sect 32, Procurement Initiation & Contract Authority) regardless of what is being bought. 

To play the extreme case if I was a Cpl that had a Acq Card and I was ordered to go buy civilian clothes, I would ask for substantiation.  If there was none except "go buy that shit Cpl" then I would ask for that in writing and place it on the procurement file and go buy the crap.  The person doing the ordering is going against regulations not law and I am sure one could try and lay some form of charge the AJAG will laugh the file away (assuming that the procurement was truly for the unit not for someone's personal gain).  The more likely scenario is if caught there will be slaps on the wrist all around and at most loss of DOA or a more restricted one.  More likely is a sternly worded PPV letter that the CO will have to respond back to the RDAO saying "mea culpa and I won't do it again".  Not that I have seen such things happen or anything... :nod:

In what way are the "civilian clothing...for members of the regiment." government business-related purchases?  Unless the Cpl and QM are members of a CSOR, IO or HUMINT-like unit in which the members wear civilian clothes to perform operational tasks

OP provided no real context but I have seen a few cases were such purchases were duly authorized.  Generally it is handled through a claims process much like nurses/dental footwear but in extremis Acq cards were used because they are just payment tools.