Jamaal Valentine

Two questions: 1. Is your ‘no’ based on/consistent with the associated case law? (I don’t see a link) 2. What link or what previous thread? (I’ll read it)

Would you need to evaluate it in these separate contexts in order to satisfy the evaluation requirements under FAR 17.207(f)? For example, evaluate the “-8” price for each separate period of performance.

@lawyergirl Do you work for the Government or the contractor [in this scenario]?

BLUF: I cannot answer your single question based on what you wrote. However, I will provide some general information rather than to pepper you with questions. Hopefully, this information gives you something to help yourself research or refine your inquiry. If the government is exercising an option under a contract clause (i.e., 52.217-8), then the terms of that option apply. Under FAR 52.217-8, “[t]he Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary of Labor.” I won’t question your statement that the vendor increased the price, but I will say that if the vendor increased their price, I don’t believe you are operating under FAR 52.217-8. This brings me to your actually question: Again, 52.217-8 facilitates continued performance of services within the limits and at the rates specified in the contract. The option terms were evaluated and included in the resultant contract. This was presumably done in a way that would satisfy FAR 17.207(f) at the time of exercise. Thus, the ‘JOFOC’ or ‘new contract’ would not be necessary. Now, the reason you may be considering a JOFOC or new contract is because someone has realized the option exercise is not in accordance with the terms of the option. If that is the case, a JOFOC or new contract may make sense. This makes sense when a change (such as an extension) is beyond the scope of the contract (e.g., terms of an option) and is essentially a new procurement. See Major Contracting Services, Inc., GAO B-401472, at 6, 2009.

I’m not sure if you’re asking if R&D funds can pay O&M obligations and without understanding the contract’s structure, I’ll offer you this resource as a guide to the “Purpose Statute”. https://www.gao.gov/assets/2019-11/687162.pdf (Pages 9-27) In general, 31 U.S.C. 1301(a) states that — “Appropriations shall be applied only to the objects for which the appropriation were made…” Here, you are examining the relationship between the expenditure and the appropriation you want to charge. Also, one of the tests of a proper expenditure is that it is not provided for and within the scope of another appropriation. Hopefully, this can help you answer or refine your question.

@here_2_help Your comment made me think of the DOD Source Selection Procedures. Outside of the FAR 1.108(c) reference it's not relevant here, but it says “In determining applicability of these source selection procedures, calculate the value of the contract action in accordance with FAR 1.108(c), except that the value of an indefinite delivery indefinite quantity (IDIQ) contract includes only the value of orders for which pricing terms are established in the basic contract.” I find the instruction interesting given FAR convention and the things you've mentioned (e.g., minimums, IGEs, etc.).

Vern, We have the watch!

We don’t have a lot of information to provide a specific response. For example, the dollar value is unknown. How complex is the software development? What is the length of the contract going to be? Was the single-award BPA awarded by your office or is this an interagency acquisition? What rule governs the process (e.g., FAR 10.001, agency supplement, local policy, leadership’s expectation, some ordering guide)? If FAR 10.001 is applicable, it provides what the agency ‘shall’ do. See FAR 10.002, which outlines procedures and mentions orders at FAR 10.002(b)(1)). Keep in mind, market research under FAR part 10 is conducted, in part, to arrive at the most suitable approach to acquiring supplies and services. “The extent of market research will vary, depending on such factors as urgency, estimated dollar value, complexity, and past experience.” Most likely you have to decide what rule in FAR part 10 applies, if any, and then comply with any market research requirements under FAR subpart 8.4, as applicable. First, you conduct or use market research (adequate information) that leads you to potential solutions such as the BPA. However, you don’t necessarily know the BPA is the most suitable approach so you continue as appropriate. For example, the BPA may not be the best option - given the circumstances today. Now, maybe this is below SAT and minimal research is necessary - you don’t say. Thus, the best I can say, is identify the governing rule—if any—satisfy it, document your compliance, and move on. See FAR 4.801(b).

“Unknowingly” vs. the prohibition against “knowingly.”

Amen 🙏🏾

Bingo! (Reading that you have settled that ratifications relate to authority issues; forget any compliance issues relating to procedure and content)

Are you distinguishing the resulting ‘contract’ from the unauthorized commitment or treating the terms synonymously as used in that subsection? (FAR 1.602-3(c)(2) and (c)(3) seem related (really 1-7 are read together)). Reminder: FAR 2.101 defines ‘contract’

I think we can agree that either the Government representative has the authority or lacks it. What happens when they lack the authority? Here, you’re talking about ratifications [within or outside of FAR]. I mentioned institutional ratifications earlier, but I’ll leave that idea there for you to research if interested. I suggest reading the reference Vern provided earlier. Check out ‘unauthorized variations’ and contract avoidance.

Sure. I’ll go as far as saying this is the most likely course of action throughout government. Nonetheless, under FAR, the contracting officer lacked the authority to award the contract without the required clause, right?

I understand your question. I was asking Jacques about any question he may have. I believe the answer is yes [it can]. I offered the deviation from FAR as one example. Remember, the FAR System includes agency supplements. While “[n]o contract shall be entered into unless the contracting officer ensures that all requirements of … regulations, and all other applicable procedures, including clearances and approvals, have been met,” I believe Agency Heads and HCAs can deviate from or waive some of these requirements. I believe they may do so through ratifications.

The deviation from FAR approval authority and ratifying official(s) are likely contracting officers by certificate of appointment or by virtue of their position (e.g., Agency Head or HCA). If a FAR deviation is what is keeping the resulting contract from being otherwise proper, the certain officials could remedy this if they may deviate from FAR. Thus, the resulting contract would otherwise have been proper if made by an appropriate contracting officer (e.g., Agency Head or HCA). Also, DFARS 252.222-7006’s applicability to a particular contract or subcontract is waiverable. NOTE: “the head of the contracting activity, unless a higher level official is designated by the agency, may ratify an unauthorized commitment.” FAR 1.602-3(b)

So what is your question as it relates to this? Assuming you have one, please be clear and concise. Otherwise, I’ll continue enjoying your commentary. Cheers!

What do you mean isn’t subject to review? Review by whom? I’ve been a ratifying official and my decisions were surely subject to review.

I think you are getting overwhelmed and I’m not sure what you know about ’institutional ratifications’ and the FAR System. However, not all clauses are mandated by law. It might be helpful to focus on a specific fact pattern rather than abstractions. I don’t want to misled or be misunderstood.

The plain language is clear and unambiguous and does not lead to an absurd result. Thus, apply the plain meaning rule. Moreover, we have to give meaning to the rest of FAR, which provides a mechanism for resolving actions that cannot be ratified under the subpart. Finally, we have case law that supports this interpretation.

Can you identify where I said this? I don’t think I did because it wouldn’t make sense since the seller could seek quasi-contractual relief under quantum meruit or quantum valebant. Under FAR 1.401(b), “[t]he omission of any solicitation provision or contract clause when its prescription requires its use” is a deviation from FAR. This is the kind of thing a ratifying official can ratify, assuming the deviation is within their authority/discretion. DFARS 252.222-7006 is not required in all contracts and applicability to a particular contract or subcontract is waiverable. Maybe ratifying officials are better suited for these types of actions and administrative law judges [types] are better suited for the other.

Consider the behavior it aims prevent. In contrast, generally, recovery may be implied in law under quantum meruit or quantum valebant when the government would be unjustly enriched if it were allowed to keep goods or services without paying for them. Two separate processes and standards for different mischiefs.

Thanks, Carl. You’re right…Whew! 😅

Copypasta in FAR? Never. 😒

@Don Mansfield That’s what we typically do, but we have to make some sense of the language to give it meaning. Carl offered something, but I didn’t see $75M or $100M in the link he provided. Now, I didn’t put much thought into it, but I can see a scenario where someone has a proposed contract exceeding $15M with a portion of that $15M including up to $7.5M in sole source/brand name commercial products or services. In this scenario, the higher level approvals would apply. I presume such an action would receive greater scrutiny—by design—from above. Is it thought to be a scrivener’s error?