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About MileHighAcq

  • Birthday June 28

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  1. It's why they sell professional liability insurance for COs - that whole personally and legally liable thing... I've never seen an unauthorized commitment not ratified, but the possibility of it not being ratified and being personally financially liable, plus the detrimental impacts to one's career, are generally sufficient to keep most people on the straight and narrow and not abuse their authority. If a CO uses their authority sparingly and appropriately (i.e. significant harm to the agency and/or the public but for their immediate action) and follows up oral orders as soon as practicable with a written contract, things will generally turn out alright.
  2. This is true, and sound advice. Though about legal review, all of us COs and PAs are fond of saying they're advisory. lol At least until someone higher up reminds us that those advisory personnel are who will be defending our asses when things get serious, so we better take their advice.
  3. I try As a reviewer (I'm a PA), I'm not going invalidate an entire contract just because the CO missed a step or two in the process (e.g., failed to synopsize, did not document market research, missed a required D&F, etc.). Those become findings on the file, and while some are more serious than others, they're all procedural in nature. There are few things in our world that are "fatal flaws". It's a good reminder for acquisition staff.
  4. In my mind, a CO following up an oral order with a written order is more the CO correcting/remedying a procedural failure (not following procedures) than an unauthorized commitment.
  5. Yes, that's what I'm leaning toward. That a reviewer can write a CO up for not following procedures in issuing a written order, but the CO still had the authority to enter the binding agreement. The failure was in not following the proper procedures.
  6. 🤦‍♂️ so technically it's an unauthorized commitment...
  7. See above. Does any representative of the Government have the authority to enter into an oral contract?
  8. I would say it hinges on whether we think there is such a thing as an oral contract - from the standpoint of does any officer of the government have the authority to bind the government orally, not from the standpoint of the contractor getting reimbursed later on - i.e. from the Government's vs. the contractor's perspective. Maybe that's not much of a distinction, but in my mind it's important to this particular questions. The FAR defines an unauthorized commitment as follows: Unauthorized commitment, as used in this subsection, means an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government. Does any representative of the Government have the authority to bind the government orally? If the answer is no, then I would say it's an unauthorized commitment that needs to be ratified. But again, with the COA being silent on written or oral contracts, I think it gives the CO sufficient wiggle room to issue an oral contract in cases of emergency, and the problem if they don't follow up with an oral written contract is more of an administrative failure from the Government's perspective. FAR 50.103-2(c) is the closest thing I've seen in the FAR that addresses the situation. Thanks for the reference @Don Mansfield!
  9. Now we're talking! The Red Book seems to confirm that there's a distinction between cases of an oral or implied-in-fact contract for the purposes of a contractor being able to collect monies for services rendered / products delivered, and the validity of such contracts from a regulatory compliance standpoint. I'm still unclear as to whether a CO acting within their authority but for the fact that the contract was not in writing would be considered an unauthorized commitment by the CO, or a mere administrative error, but I did find the following instructive: Section 1501(a)(1): Contracts b. Contract “in Writing” While there may be some room for interpretation as to what constitutes a “writing” for purposes of 31 U.S.C. § 1501(a)(1), the writing, in some acceptable form, must exist. Under the plain terms of the statute, an oral agreement may not be recorded as an obligation. In United States v. American Renaissance Lines, Inc., 494 F.2d 1059, 1062 (D.C. Cir.), cert. denied, 419 U.S. 1020 (1974), the court found that 31 U.S.C. § 1501(a)(1) “establishes virtually a statute of frauds” for the government9 and held that neither party can judicially enforce an oral contract in violation of the statute. However, the Court of Claims and its successors, the Claims Court and United States Court of Federal Claims, have taken the position that 31 U.S.C. § 1501(a)(1) does not bar recovery “outside of the contract” where sufficient additional facts exist for the court to infer the necessary “meeting of minds” (contract implied-in-fact). In Pacord, Inc. v. United States, 139 F.3d 1320 (9th Cir. 1998), the court relied on Narva Harris Construction Corp. in holding that, even though the Federal Acquisition Regulation (FAR) generally requires contracts to be in writing,10 an oral contract may be enforced if the plaintiff “can establish sufficient facts, beyond a mere oral agreement, for the court to infer the existence of an implied-in-fact contract.” Pacord, 139 F.3d at 1323. d. Invalid Award/Unauthorized Commitment Claims against the government resulting from unauthorized commitments raise obligation questions in two general situations. If the circumstances surrounding the unauthorized commitment are sufficient to give rise to a contract implied-in-fact, it may be possible for the agency to ratify the unauthorized act. If ratification is not available for whatever reason, the only remaining possibility for payment is a quantum meruit recovery under a theory of contract implied-in-law. The quantum meruit theory permits payment in limited circumstances even in cases where there was no valid obligation.
  10. Thanks! What I find particularly interesting is all the folklores, customs, legends, and just downright myths that have been passed down from CO to CS over the ages that have no foundation in law, regs, or policy, when your come down to it. It's just "the way we've always done it" and no one has ever questioned it or asked why - or if they did, they didn't get very far. I honestly wish I had more time to spend on this forum for those kinds of topics. But alas, the mountains (of paperwork and redtape) are calling, and I must go.
  11. I find gray areas of law, regulations, ethics, etc. fascinating and am curious how other COs handle such issues. Also can be practical advice when/if I encounter such issues.
  12. What about the issue of whether a CO is exceeding their authority when they issue a verbal order? I'm thinking most COAs are silent on whether the CO has to issue their orders/contracts in writing or verbally. It is understood that contracts are in writing. I guess as long as the CO follows up a verbal order with a written order/contract/modification within a reasonable time, it's a non-issue. But what is a reasonable time? Maybe it's before someone else (e.g. an auditor, an independent reviewer, supervisor, etc.) discovers it? Or before an REA/claim comes in from the contractor? If a CO fails to issue a written order/contract/modification before the problem is discovered by someone else, do you then process it as a ratification of an unauthorized commitment pursuant to FAR 1.602-3 because the CO does not have express authority to enter into verbal contracts/agreements? Or, since the COA is silent on orders/contracts having to be in writing, do you consider the CO as having had the authority to enter a contract, and the problem is more of an administrative issue in their failure to follow up with a written order/contract/modification? Personally, I'm leaning towards the latter.
  13. How is it relevant? If you use it under the micro, no contract is necessary - i.e. the purchase card is both the contract and the method of payment. On the other hand, if you use it only as a method of payment, you still need a written contract in place. The only issue it gets you around is the ADA/funding issue.
  14. I agree, those are definitely real scenarios that COs face every day, and for the most part (I'm guessing, hoping, but have no way of knowing) they handle it responsibly and quickly follow up verbal direction with a formal contract, order, or modification. But I do think that it puts COs at risk and in a vulnerable position, should shit ever hit the fan. Something else to consider is that some COs may be less willing than others to take on such risks and therefore refuse to do verbal contracts/orders, which hurts the customer/mission. I also see the issue from OFPP's standpoint and why they don't want to put a less cumbersome process in place for emergency situations - because they know it will likely be abused. End result is that we're left with some murky gray areas that isn't ideal for anyone.
  15. probably not, but I'm not sure I like the alternative of the status quo (which seems to be that we pretend not to do it and they (the auditors) pretend that they don't know differently) any better.
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