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Colleagues: My issue is: Whether an agency may issue a letter, and subsequently require an employee to pay an unauthorized commitment it will not ratify. My initially thought is no. I am unaware of any authority where an agency can require an employee personally pay for an unauthorized commitment for which the agency will not ratify. Of course, the contractor could pursue payment for the employee who entered into the unauthorized commitment, but I do not see how an agency can require (or really even issue a letter to) an employee to pay. Any insight would be appreciated. Background facts in case anyone is interested: The Agency completed a Justification for Other than Full and Competition (JOFOC) for purchase of a specific vendor-offered course. The contractor informs Agency Employee #1 that the course is full and offers another course (not approved on the JOFOC) that costs the same amount. Agency Employee #2, asks contracts, "Can we substitute the second course for the first," and the contracting officer (CO) says, "no." The CO says a JOFOC was not approved for the second course. Agency Employee #2 goes ahead anyway and substitutes the first course (the JOFOC-approved course) for the second course (the course that is not approved). A ratification request was completed by Agency Employee #2 and he agency is in the process of denying the request. The denial is based, in part, on FAR 1.602-3(c)(3), in that "[t]he resulting contract would [not] otherwise have been proper if made by an appropriate contracting office." The thought is, the JOFOC was approved for the first course and not the second course. Also, FAR 1.602-3(c)(6), because, "[f]unds.. were [not] available at the time the unauthorized commitment was made. A check was made with budget and funds were not available at the time the commitment was made. However, funds were obligated on the order/contract which were intended for the first, approved course, so there is an argument that funds were indeed available. Again, any thoughts are appreciated and thank you in advance for your help.
In the event of an unauthorized commitment where the COR directed the contractor to perform the work not called for/funded by the contract (CR), where the CO doesn't feel that the commitment meets the requirements for ratification set forth in FAR 1.602©(3) and refuses to ratify, what are the options for the government and contractor? Specifically, the contractor can submit a claim or sue the government, but can the contractor take action against the COR specifically? Can the government take action against the COR, holding them liable for the amount of the unauthorized commitment? Are there any cases or examples where this has occurred?