sentative. Indeed, it is the responsibility of the senior U.S. military person present to assume command of all U.S. personnel confined within a particular camp unless otherwise provided by pertinent service directives. In camps that do not contain officers, the prisoners' representative is elected by the prisoners, by secret ballot, every 6 months. It is the duty of such a prisoner's representative to further the physical, spiritual, and intellectual well-being of those he represents. In addition, he supervises their welfare and represents the prisoners before the military authorities, the Protecting Power, the International Red Cross, and similar organizations.

f. Interrogation. The 1949 Geneva Prisoner of War Convention provides that a prisoner of war must give only his full name, rank, date of birth and service number. This is all the information a captor may demand. No method of torture, mental or physical, may be used to obtain even this information from then, and certainly may not be used to obtain any additional information.

g. Observance of Camp Regulations. So long as they are held as prisoners of war, they must obey all the lawful camp rules. PWs may be punished for violating these rules, but the punishment must not endanger their health.

h. Work. The captor may require PWs to work in limited circumstances. Prisoners of war who are not officers or noncommissioned officers may be compelled to perform labor which is neither military in character or purpose, nor humiliating, dangerous or unhealthy. The removal of mines or similar devices is considered by the Convention to be dangerous work. Noncommissioned officers may only be compelled to do supervisory work. Commissioned officers may volunteer but may not be compelled to work.

DISCUSSION PROBLEMS CHAPTER 7

1. Should US soldiers in foreign countries be subject to the laws of that country? Should they be subject to all law, i.e., crimes and taxation or to just certain laws? Should foreign soldiers in the United States be subject to US and state laws?

2. Are the laws of war compatible with Nuclear war? Guerilla war? Is there a difference between the pilot who drops a bomb and a soldier with a rifle?

3. How can a commander best train his men to obey the laws of war? Is this a matter for commanders or for lawyers?

CHAPTER 8

MILITARY AND PERSONAL PROPERTY

Army officers must be concerned with several areas of law other than criminal law. One of these areas deals with property military and personal. The Army must procure equipment, supplies and services and must safeguard them. Likewise, the Army is concerned with protecting the personal property of its members who are frequently moved or may otherwise risk loss or damage to their personal property incident to being a soldier. This chapter discusses several aspects of the law as it relates to property.

GOVERNMENT PROCUREMENT

Contracting is the basic method utilized by the Government to obtain supplies and services from private business concerns. Nearly all request for items ranging from paper clips to missile systems eventually find their way into the military procurement channels and are filled by contract. As with a contract entered into by any two private individuals, the law requires that certain elements be present in any government contract. The Supreme Court of the United States expressed this view by the following language: "If it (the United States) comes down from its position of sovereignty and enters the domain of commerce it submits itself to the same laws that govern individuals there." Cooke v. United States, 91 US 389, 398 (1875). Accord Perry v. United States, 294 U.S. 330, 353 (1935); Lynch v. United States, 292 U.S. 571 (1934); United States v. Hadden, 192 F .2d 327 (6th Cir. 1951). There must be an agreement between the parties that create mutual obligations which the law will enforce. To create a valid contract there must be an offer and acceptance, mutual understanding of the meaning of the contract by the parties, sufficient consideration or value going to each party to support their obligations, and a lawful purpose. The law must also find that both parties to the contract had the competence to enter into a contract, e.g., the law will not recognize as legally binding a contract entered into by a child. Furthermore, the scope and meaning of government contracts are often subject to the same principles of contract interpretation as are private contracts performed in the commercial marketplace.

Given these basic concepts of the law of contracts, it should be clearly understood that government contracting is quite distinctive. The dis

similarity between government contracts and commercial contracts far outweigh the similarities. Government contracts contain terms and conditions that would be most unusual in private contracts. For example, in a government contract for the construction of housing, the United States specifies the minimum wages which the contractor must pay his employees. This wage is generally far in excess of any wage set by state or federal minimum wage statutes. A private citizen would normally not consider imposing such a condition in his contracts. The unique character of government contracts is primarily due to the varied responsibilities and to the power of the Federal Government. The Federal Government is the primary protagonist for many socioeconomic policies such as the enforcement of equal employment opportunity. Often government contracts are utilized for the implementation of these policies and goals. Finally, the Federal Government has a fiduciary or trustee responsibility to the taxpayers that the funds are spent in a manner that minimizes the risk of waste and favoritism. Consequently the law of government contracts provides for special limitations on the relationship between the parties to the contract. For example, the laws controlling government contracts provide for the recovery by the Federal Government of excess profits received by it contractors. All of these factors combine to make the law of government contracts distinctive and very complex. A general recognition of the unique position and responsibilities of the Federal Government combined with the fact that the United States purchases approximately fifty billion dollars a year in goods and services creates a willingness by private concerns to enter into government contracts even with the attendant risks and responsibilities.

The legal authority for the various agencies of the United States to contract is derived from several sources. However the key factor affecting the power of a federal agency, such as the Department of Defense, to enter into contracts is the limitations imposed by the Congress. Article I of the Constitution states that "The Congress shall have Power To... provide for the common Defense and general Welfare of the United States." Acting under this authority, the Congress imposes many restrictions and requirements on government contracting. While some of these requirements are expressed in the annual authorization and appropriations acts, the basic source of Congressional policy affecting procurement by the Department of Defense is the Armed Services Procurement Act of 1947. The statutory policy expressed in this Act is further amplified by the issuance of extensive regulations. A multivolume regulation, entitled the Armed Services Procurement Regulation (ASPR), governs the contracting procedures and provides the source for nearly all the terms and conditions for Department of Defense contracts. Similar laws and regulations govern procurement by the civilian agencies of the Federal Government. The greater complexity of the ASPR results from the unique problems involved with the procure

ment of sophisticated weapon systems and other complex hardware. The ASPR is further refined by the decisions of the various administrative agencies and by the Federal Courts. The effect of the interaction of the Congress, the Courts, and the administrative agencies has been to create a system of contracting combining policies and procedures that are complex and sometimes contradictory. Consequently the procurement function within the Department of Defense has become the responsibility of a relatively small group of experts in this field.

While it is not feasible to set forth a complete explanation of government procurement, two points should be understood by every individual in the Army. First, the United States performs all of its functions through the actions of its employees or in legal terminology, through its agents. The agents of the United States for the purpose of contracting for goods and services are designated as contracting officers. The lawful scope of action that any agent may take for the Government is known as the agent's actual authority. If an agent of the United States exceeds the scope of his lawful authority, the agent's actions may not bind the United States (Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1974)). Thus if an individual other than a contracting officer attempts to enter into contracts for the United States, the Government may not be legally bound. The limitations on the authority of the contracting officer are expressed in statutes and in the ASPR. The primary limitation on the authority of a contracting officer is the dollar amount of any contract he may enter into on behalf of the United States. For example, a contracting officer may have the authority to enter into contracts which do not exceed one million dollars. If this contracting officer signs a contract that obligates the United States for more than that amount, the Government is not bound because the contracting officer has exceeded his authority. In this instance, with only limited exceptions, the contractor has no claim against the United States and can only attempt to sue the individual who signed the contract. Even if the individual misrepresents himself as a contracting officer or misrepresents the extent of his authority, the private contractor generally has no recourse against the United States. The courts have clearly stated that in most cases the United States is not bound by the actions of its agents acting outside of the actual authority granted to them. The private contractor has the responsibility to determine the nature and extent of the authority of an agent of the Government. The United States Supreme Court articulated this view in Federal Crop Insurance Corp. v. Merrill, supra, as follows:

Whatever the form which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rulemaking power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.

The courts have reasoned that the risk of dealing with an unauthorized agent should, as a matter of public policy, fall on the individual contractor rather than the taxpayers. This rule is a significant departure from the general rule of law in private commercial transactions. Failure to appreciate the impact of this rule of government contract law has created much unnecessary trouble for both the private contractor and the government employee. This rule is not found in any statute. It represents the development of Federal law through a series of decisions in the courts and illustrates the fact that in most cases involving government contracts the courts will use Federal law rather than the law of any state.

A second rule in government contracting concerns the availability of funds for the given contract. Congress has the Constitutional authority to make funds available for procurement. At 31 U.S.C. § 665(a) better known as RS. 3679 or the Anti-deficiency Act the Congress has stated that

No officer or employee of the United States shall make or authorize an expenditure from or create or authorize an obligation under any appropriation or fund in excess of the amount available therein; nor shall any such officer or employee involved the Government in any contract or other obligation, for the payment of money for any purpose, in advance of appropriations made for such purpose.

Thus before a contracting officer may initiate a procurement of goods or services, he must insure that funds are available. Failure to comply with this requirement, may subject the Government employee, whether civilian or military, to criminal prosecution. While there are many other laws and regulations affecting procurement, these rules are of primary importance to all personnel. Care should be taken to avoid any violations of these rules.

REPORTS OF SURVEY

Members and employees of the Army are not absolute insurers of Army property entrusted to their care. Instead, any liability which they might incur for loss of or damage to Army property must be due to their negligent or otherwise wrongful conduct with respect to its use or custody. The principal means for making administrative determinations as to whether such conduct has proximately resulted in loss of or damage to Army property is the "report of survey" system. Army Regulation 735-11 sets forth the procedures that commanders must follow in determining whether an individual should be held pecuniarily liable for loss of or damage to Army property.

Grounds of Liability—The rules constituting the substantive grounds of pecuniary liability applicable to members and employees of the Army are as follows:

Rule 1-Persons having supervisory responsibility will be charged with any loss caused by their willful misconduct or gross negligence. (Army Regulation 735-11, paragraph 4-18a).