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thecontractingguy

Ratification needed?

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What are you all's thoughts on software maintenance renewals processed by the CO after the date that the renewal starts?  Many times customers don't renew their software subscription on time so with most vendors in order to renew the software you have to pay for any updates that occurred between the last day that the subscription ended and the period in between when it is going to be renewed again.  The question of is it a ratification has come up.  Another scenario is when customers have yearly access to catalogs (yearly subscription) and the next years subscription procurement does not get to the CO until after the next period has started.  

I ask all of this because some things are easy to tell if it is a ratification.  Customer tells a vendor to ship a product.  Product is received and vendor wants to be paid.  No contract in place so it's a ratification.  I don't see it so black and white with software subscriptions and other type subscriptions.

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See FAR 1.602-3(a):

Quote

 

“Ratification,” as used in this subsection, means the act of approving an unauthorized commitment by an official who has the authority to do so.

“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.

 

What gets ratified is an unauthorized commitment, an agreement. So, did anyone make an unauthorized commitment or did the contractor simply continue to provide the service without being asked to do so? If the latter, then I don't think there was an unauthorized commitment. The contractor performed at its own risk, and I don't think there is an issue of ratification.

The question would be whether the government should pay for the service provided prior to contract award. 

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"Ratification" "means the act of approving an unauthorized commitment by an official who has the authority to do so" (FAR 1.602-3).  What you are asking is whether or not it should be considered an unauthorized commitment which is "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" (FAR 1.602-3). 

To answer the question ask yourself did someone make a commitment to the contractor.  If so, who was it and did they have authority to contract.

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