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Appears To Be An Unauthorized Commitment

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Good Day My Fellow Contracting Professionals,

I hope I have posted this in the correct area - if not, please forgive me.

Here’s the scenario: A Government Agency and the Local Union agreed to arbitration to settle a matter. The agreement was the Agency and the Union would split the cost for the services. The Contracting Officer received a funding document and the invoice to pay for the services. There is not a contract vehicle in place such as a contract / purchase order, BPA, etc.

To me, this appears to be an unauthorized commitment that should be ratified, whereas, the services have taken place, no contract vehicle was in place, and now it’s time to pay the invoice.

My question is: Does anyone know of an exception that would allow this type of action without a contract vehicle being in place first, i.e., just pay for the services once they are completed? By the way, the Vendor does not accept credit cards, so a purchase order will have to be issued to pay for the services. I can’t find anything in the FAR, the agency supplemental regulation, or anything in the Agency’s HR regulations that would allow for an exception to not have a contract in place before the services took place. FAR Part 33 is not applicable in this particular scenario.

The dollar value is under the SAP, but over the Micro Purchase Threshold - not that it really matters.

Thank you for your time and expertise!

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Did a warranted contracting officer make the agreement to split the costs? Did the funding document and invoice come in after someone else made the agreement on behalf of the Agency? The answers to these questions could change the idea of ratification into one of definitization.

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Hi MBrown,

No, a warranted contracting officer did not make the agreement to split the cost, nor were they aware of the action until the funding document and the invoice came in. The agreement is in the Master Union Agreeement between the agency and the union. As you know, the Union is not governed by the FAR, i.,e, they can spend their money based on their bylaws. Yes, the funding document and the invoice came in after someone else made the agreement on behalf of the Agency that was not a warranted contracting officer.

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Who signed the CBA on behalf of the agency? If it was not the agency head, did whoever signed the CBA for the agency have delegated authority from the head of the agency?

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Wait a minute. The acquisition rules apply to acquisitions of supplies and services. You say "split the cost for the services." What services? Are we talking about an acquisition contract or some other kind of agreement/contract? Are the two parties buying something? How is it that the government and a union are conducting a joint acquisition.

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I believe they are trying to pay for the mediation services of a third party mediator.

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I don't know if that's an acquisition contract or not, but let's assume for the moment that it is. If so, then I think you have an unauthorized commitment that requires ratification. But you should check that with your legal office.

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VBA,

Before you get too involved in unathorized commitments, check with your Labor Relations people. Usually agencies enter into collective bargaining agreements between agency heads and employee unions. Normally there's a process spelled out on how arbitrations are handled included how arbitrators are selected and how the cost is split out and paid. This also means the process falls under 5 USC.

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As a follow-on to Formedfed's comment #8, I'll add that competition is not required for contracts for arbitrators or mediators -- see FAR 6.302-3( b )( 3 )( ii ). So likely, if you have an agency/union agreement, the answer will be just to issue a purchase order or write a convenience check or do a purchase card payment.

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The dollar value is under the SAP, but over the Micro Purchase Threshold - not that it really matters.

Assuming that VBA's agency is using simplified acquisition procedures, CICA and FAR 6.302-3 are inapplicable. See FAR 6.001(a). Moreover, if an unauthorized commitment was involved a CO below the level of a chief of a purchasing office has no authority to ratify it by issuing a purchase order or a convenience check. See FAR 1.602-3(B)(2) and (3).

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