C Culham

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  1. And as an add on I would note that a search of GSA FSS contracts, which are commercial item acquisitions, lists advisory and assistance services as being available under said contracts. You may not have to invent the wheel to get to a commercial item determination.
  2. Krusem - As you research the idea of A&A as a Performance Based acquisition if you have not visited these references you may find them of help in your quest. https://www.acquisition.gov/seven_steps/library/RAND_ImplementingPBSA.pdf
  3. Your need if determined to be A&A, as supported by market research could also meet the definition of commercial item of FAR Part 2, noting that your contract type will play a role as well. If your need does then using entities off of GSA FSS or use of simplified acquisition procedures could be great options. Routes you may already be aware of, just mentioning due to the title of your post and the above quote from details of your post.
  4. I wonder if the Guiding Principles are based on sound logic and are not really as messy as they have been made out to be in this thread? http://www.cbca.gsa.gov/files/decisions/2010/HYATT_06-15-2010_1165__ENGAGE_LEARNING_INC_508.pdf http://www.cbca.gsa.gov/files/decisions/2016/POLLACK_03-31-16_2294__AMERICOM_GOVERNMENT_SERVICES_INC.pdf
  5. Joel - Actually the FAR says this - "The Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim." Not this So are you saying that a person who lacks authority and makes an unauthorized commitment has made a contract? If so why have ratification at all? For Contract Disputes to kick in you must have a "contractual issue" shouldn't you?
  6. The above quote does not see congruent with the DFARS. Likewise the easy peasy is now becoming more messy pesi. Sounds like all the documentation that is being proposed like writing a letter, asking now for two certifications, or is it just one, is tantamount to doing a request for ratification? I already did the ratification request and got it approved and issued the modification by the time I waded through letters, certifications, etc. Just saying but like Vern I will let others be the judge. 243.204-71 Certification of requests for equitable adjustment. (a) A request for equitable adjustment to contract terms that exceeds the simplified acquisition threshold may not be paid unless the contractor certifies the request in accordance with the clause at 252.243-7002. (b) To determine if the dollar threshold for requiring certification is met, add together the absolute value of each cost increase and each cost decrease. See PGI 243.204-71(b) for an example. (c) The certification required by 10 U.S.C. 2410(a), as implemented in the clause at 252.243-7002, is different from the certification required by 41 U.S.C. 7103, Disputes. If the contractor has certified a request for equitable adjustment in accordance with 10 U.S.C. 2410(a), and desires to convert the request to a claim under the Contract Disputes statute, the contractor shall certify the claim in accordance with FAR subpart 33.2. 252.243-7002 Requests for Equitable Adjustment. As prescribed in 243.205-71, use the following clause: REQUESTS FOR EQUITABLE ADJUSTMENT (DEC 2012) (a) The amount of any request for equitable adjustment to contract terms shall accurately reflect the contract adjustment for which the Contractor believes the Government is liable. The request shall include only costs for performing the change, and shall not include any costs that already have been reimbursed or that have been separately claimed. All indirect costs included in the request shall be properly allocable to the change in accordance with applicable acquisition regulations. (b) In accordance with 10 U.S.C. 2410(a), any request for equitable adjustment to contract terms that exceeds the simplified acquisition threshold shall bear, at the time of submission, the following certificate executed by an individual authorized to certify the request on behalf of the Contractor: I certify that the request is made in good faith, and that the supporting data are accurate and complete to the best of my knowledge and belief. (Official’s Name) (Title) (c) The certification in paragraph (b) of this clause requires full disclosure of all relevant facts, including¾ (1) Certified cost or pricing data, if required, in accordance with subsection 15.403-4 of the Federal Acquisition Regulation (FAR); and (2) Data other than certified cost or pricing data, in accordance with subsection 15.403-3 of the FAR, including actual cost data and data to support any estimated costs, even if certified cost or pricing data are not required. (d) The certification requirement in paragraph (b) of this clause does not apply to¾ (1) Requests for routine contract payments; for example, requests for payment for accepted supplies and services, routine vouchers under a cost-reimbursement type contract, or progress payment invoices; or (2) Final adjustments under an incentive provision of the contract.
  7. I appreciate that Vern has reposted his previous posts of this discussion as they provided a refreshed look at what has been said. Vern has provided that the contractor has submitted a “non-claim”. Then he goes on to say that the REA can be settled under the Contract Disputes. How can the Contract Disputes be used to settle an REA that is a non-claim? The answer is quite easy as the REA as it has been stated in this particular instance is neither a written demand or written assertion, it is a request of equitable adjustment, as such is not subject to Contract Disputes. As I stated in my very first post in this discussion “I fear the discussion is too broad with regard to CDA.” And it remains that way.
  8. Matthew - Please do not start. I am reading the current FAR, current supplements to the FAR, and current interpretations of the FAR that ratification as provided for in FAR 1.602-3 is a process where a Government official makes an after-the-fact approval of an unauthorized commitment (obligation) that was made by a Government employee who did not have the authority to otherwise obligate the Government. The obligation is not binding on the Government because the person lacked authority to make the obligation, so the seller (FAR Part 2 definition of a contract) has no legal basis to demand payment. In order for the seller to get paid, an appropriate Government official must ratify the unauthorized commitment, making the obligation binding after the fact. A seller that has done work in response to an unauthorized commitment may well submit the REA, but the REA can not be acted on until it is determined that a valid obligation exists - ratification does this. Now folks will try all kinds of things to throw out to change the scenario first stated in this thread as to how an unauthorized commitment can simply be handled under Contract Disputes such as implied contract or quantum merit. Yes they might have a bearing but they are common at law doctrines that the CO would express to the ratifying official to consider in approving or not the unauthorized commitment. I have thought about what I have read, very carefully, I might add. I do not drink the potion just because someone tells me I have to. I determine on my own through foundations whether I should and then I either drink it or I do not. And that is it!
  9. Vern – I was only following your lead on “history” because you said this “ I can change my mind in the course of 17 years. I can change it in an instant if it serves my purpose. “ So as I said everyone can change their mind even the drafters of procurement policy and the courts in the 73 years from 1944 through to today. When all is said and done and referencing the response I have provided to Jamaal in this thread agencies are no further in making the bureaucratic process of controlling unauthorized commitments less bureaucratic. And in the very example we have been discussing I agree ratification should be simple but I retain my thinking that leaving it to CO’s solely in the case of unauthorized commitments arising under or relating to a contract is absent proper oversite for proper fiscal control and for prevention of fraud, waste and abuse. I agree that everyday CO’s handle the matter of an unauthorized commitment in the manner you and ji suggest but as I have tried to relay it is not the best oversight. I stated early on that ratifications in some instances should be a slam dunk and in the case that has been used as an example in this thread it is one that should be but all the same a ratification should take place before the REA becomes a modification to the contract.
  10. Matthew – I understand your comment but my read is this. “Policy” at (b) has no and/or. So each sentence stands on its own. So the policy is – Ratifications of any unauthorized commitment must follow (c) as this number (2) paragraph does not carve out any exceptions. Extending to the discussion in this thread (5) is saying (noting that I am repeating myself) once ratified per (2) then follow Contract Disputes if the contractor files a claim again noting that an REA is sometimes a claim and sometimes is not.
  11. Jamaal – I believe you will find the answer within your agency’s FAR supplement and procurement policy surrounding it. Below is from the AGAR, USDA’s supplement to the FAR. Admittedly I am providing for both the purpose of your question as well in interest of the side discussion of this thread. From a read of many of the individual agency supplements to the FAR it seems plain language can get muddled!!!!! I have followed the AGAR by the USDA’s Forest Service Acquisition Regulation which in reality is probably policy as it is not codified in the CFR. So in this case a warrant is needed, while in other agencies no warrant is indicated for the ratifying official but I hazard to guess that the actual act of issuing a purchase order, contract, or modification to a contractor to confirm a ratification is done by a warranted CO. AGAR 401.602 Contracting officers. 401.602-3 Ratification of unauthorized commitments. (a) Definitions. "Ratification," as used in this section, means the signed, documented action taken by an authorized official to approve and sanction a previously unauthorized commitment. "Unauthorized commitment," as used in this section, means an agreement made by a Government representative who lacked the authority to enter into a contract on behalf of the Government. (b) Policy. The HCA may delegate ratification authority to the chief of the contracting office. (c) Procedure. Whenever an official of the cognizant contracting activity who is authorized to ratify unauthorized commitments learns that a person or firm has assumed work as a result of an unauthorized commitment, that official shall take the following actions: (1) Immediately inform any person who is performing work as a result of an unauthorized commitment that the work is being performed at that person's risk; (2) Inform the individual who made the unauthorized commitment of the seriousness of the act and the possible consequences; (3) Ensure that the individual who made the unauthorized commitment furnishes all records and documents concerning the commitment and a complete, written statement of facts, including, but not limited to: a statement as to why a contracting officer was not used; why the vendor was selected and a list of sources considered; a description of work to be performed or products to be furnished; the estimated or agreed price; whether an appropriation is available for the work; and whether performance has begun. Under exceptional circumstances, such as when the individual who made the unauthorized commitment is no longer available to attest to the circumstances of the unauthorized commitment, the ratifying official may waive these requirements; and (4) Decide whether ratification is proper and proceed as follows: (i) If ratification is not justifiable, provide the cognizant program office, contracting office, and the unauthorized contractor with an explanation of the decision not to ratify. (ii) If ratification appears adequately justified, ratify the action and retain or assign the contract to a successor contracting officer if necessary. (iii) Maintain related approval, decisional, and background documents in the contract file for audit purposes. (iv) Notify the cognizant program supervisor or line officer about the final disposition of the case; the notification may include a recommendation that the unauthorized commitment should be further considered a violation of USDA's employee conduct regulations. 4G01.602-3 - Ratification of Unauthorized Commitments (a) Ratification authority may be delegated to the Chief of the Contracting Office (COCO) if the COCO is warranted for actions up to the limits of their Simplified Acquisition Threshold (SAT) Contracting Officer appointment authority (that is, Simplified A and B warrants). If the COCO is not warranted, or if the action exceeds the SAT, ratification authority is limited to the HCA or HCAD.
  12. ji - Can't happen after. Submission of ratification request requires....The contracting officer reviewing the unauthorized commitment determines the price to be fair and reasonable and the CO recommends payment. As for before, the CO can always recommend not ratifying but the ratifying officials decision stands and as the ratifying official must have the authority to enter into a contractual commitment the payment to the contractor will take place if the official says it will. He/she can make it happen. Vern - As you state this was before FAR coverage. Like anyone the FAR Council can change mind on what is appropriate and they did The history does not matter what does is current interpretation of the FAR. An interpretation that has only been challenged as I understand, today! Case law of 1944 is subject to the changes in regulation and does I might add. I will give you the "not" its free. Otherwise a very weak argument as the FAR as a system (FAR 1.101) is bureaucracy so why do anything it provides guidance for? Unconvinced and there are facts that support that there are others that have and will continue to agree. Thanks for the exercise.
  13. The Federal government has addressed unauthorized commitments since at least 1980 if not prior to in Federal procurement regulations applicable to all agencies and/or individual agency regulations. Left out of the FAR specifically the matter was addressed in 1988. References in this thread support this history. The existence of the Disputes statute has a similar if not longer history. Through out this history of 35+ years there has been a consensus of interpretation and supporting policy and regulatory statements that provide that an unauthorized commitment must be ratified prior to an actual procurement action taking place. For this thread it is now suggested today based a supposed view of the plain language of a single paragraph of FAR 1.602-3, that being FAR 1.602-3(b)(5), that converting an unauthorized commitment made by a COR, or any other Federal employee , arising under or relating to an existing contract to a equitable adjustment can be done absent a ratification by a delegated ratifying official. Such interpretation does not make sense. By FAR definition an unauthorized commitment is an action by a Federal employee that is not binding and the only way to make it a binding commitment is to have said action ratified. Compare this to the FAR definition of a contract which provides in part a "mutually binding legal relationship". In this comparison the conclusion is that an unauthorized commitment is not binding, has procured nothing until a determination of applicability of ratification of the unauthorized commitment occurs at which time the commitment is or has been determined to be a appropriate (ratified) or not by an official who has the authority to do so. Then and only then does the commitment become either binding at which time the relief being sought (payment) for the ratified procurement would be handled as a REA, and if not it is to be handled under the Disputes statute. This view is supported by the plan full read of the language of FAR 1.602-3 which states at (b)(5) that the unauthorized commitments that involve claims (https://www.google.com/url?q=http://www.wifcon.com/analy/REA%20or%20Claim.doc&sa=U&ved=0ahUKEwji4sjEkpPTAhVrsVQKHc77AfYQFggEMAA&client=internal-uds-cse&usg=AFQjCNEMCAN-zFdp9xBBVJVPPa8pW6sX8A) are to be resolved under 41 U.S.C. chapter 71, Contract Disputes. This option can only be exercised when the ratifying official has ratified or not (FAR 1.602-3(a)(2) and FAR 1.602-3(c)). To separate out FAR 1.602-3(b)(5) in the context of the full regulation of 1.602-3 is not in keeping with the common sense of interpretation that paragraph (5) can be held out and read on its own absent the rest of FAR 1.602-3. To illustrate the intent of a full read of 1.602-3 and its reference to claims/disputes here is the example - A contract exists A COR makes a statement that the contractor follows that results in additional cost to the contractor The contractor submits a REA for the effort The CO informs the contractor that the REA covers work that was requested by an unauthorized individual and states the REA will be considered in this light The CO contacts the COR and requests information from the COR inclusive of availability of funding and information for use in determining fair and reasonable price The CO submits the information provided by the COR to the ratifying official indicating a view on fair and reasonable price and recommending whether the unauthorized commitment should be ratified or not If the ratifying official approves the ratification, the ratifying official either signs the modification that allows for the REA or delegates the CO to do so If the ratifying official does not approve, the ratifying official or the CO prepares a response to the contractor so stating If the contractor does not agree with the response the contractor submits a claim pursuant to the Disputes statute and FAR part 33 and the CO handles the claim as provided for by the full read of FAR 1.602-3. It is at this point that pursuant to FAR 33.204 the CO now has authority to determine settlement but not ratification as a CO, unless delegated otherwise does not have authority to ratify. There would of course be a variation to this flow should the REA meet the standard of being a claim as well. It is this process that determines if the unauthorized commitment is in fact an action (constructive change?) that should have been ratified early on or in the end.
  14. ji - Punishment is not the issue. It is a red herring. Old reference you bet, and possibly the view of GAO has changed too but and interesting read all the same. http://www.gao.gov/assets/140/131799.pdf
  15. Vern - Thanks for the responses. I went back 17 years because I did not find one suggestion, post, or comment that suggested any thing different for that 17 years with regard to interpretation of the application of ratification with regard to an unauthorized commitment arising to or relating to an existing contract. The very reason as well that I posted one other reference from the DoD that supported the same point. I am still perplexed as you have used references of 1988 for the most part and a GAO reference admittedly from 2009 is as I already stated that each unauthorized commitment carries with it its own set of facts and circumstances a point that you are quick to raise. Not punishment but a established process to prevent abuse of the Federal contracting process and regulations. Abuse that extends to matters of fiscal accountability. Abuse that also stretches to contractors who do not adhere to contract terms and conditions and specific instruction from the Government that certain individuals do not have authority to change a contract. The example provided that started the comments about simply solving certain unauthorized commitments through CDA lacks any accountability evaluations on both sides of the contract. To these points Vern I want to yes I wanted you to respond, but I actually hoped for something of substance rather than the same inferences that you have continually sent my way over the years. I long for the day that I could sit across from a table with you, cast out reasoned and well thought out and researched matters and then engage in conversation of substance rather than facing comments of innuendo and personal attacks. I honestly do not understand them! And yes they are personal because your post is directly addressed to me, you know it and I know it. Quite honestly Vern you do not know me anymore, you do not know other than what I have stated but seem to overlook that. Mine was a 47 year career that I would be willing exemplify to anyone that supports un-fossil like qualities because I was honored to listen to, understand and appreciate from the best. WAS because in the most recent years an unseemly bias has arisen that suggests that there is only one view and if that view is not embraced then a person is well just not a person of value! I understand and know that the value of arguments does not include caveats such as these. So is it an argument or is it a my way or highway edict that if not followed has to be surrounded with intentional innuendo to devalue? Your second post and the effort it took is appreciated. Right or wrong in tying this to your other writings it would seem the suggestion in the end could very well be rid the FAR, in a streamlining effort, of the unauthorized commitment/ratification process but I am left wondering how would the integrity of full contracting process be upheld. After all my recollection is that prior to 1988 some folks felt the integrity was at stake due to folks not adhering to the actual authority ideal and created a process to support it. I will continue as I always do to research and consider what the appropriate and best approach is whether it is a current instance or whether is what can be done in the future. PS - Vern, as I know it will come up as it has in the past I want to be explicit in relaying that my comments in this post are not of a bleeding heart, sobbing or even lack of an ability of taking a bruising. I can and have stood in the corner and continue to do so with anyone anytime and debate in fairness and sincerity any matter of reasoning. You see this is me and always will be...http://cowboyethics.org/cowboy-ethics/.