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Jamaal Valentine

Ratification Authority

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Jamaal –  I believe you will find the answer within your agency’s FAR supplement and procurement policy surrounding it.  Below is from the AGAR, USDA’s supplement to the FAR.  Admittedly I am providing for both the purpose of your question as well in interest of the side discussion of this thread. From a read of many of the individual agency supplements to the FAR it seems plain language can get muddled!!!!!  

I have followed the AGAR by the USDA’s Forest Service Acquisition Regulation which in reality is probably policy as it is not codified in the CFR.

So in this case a warrant is needed, while in other agencies no warrant is indicated for the ratifying official but I hazard to guess that the actual act of issuing a purchase order, contract, or modification to a contractor to confirm a ratification is done by a warranted CO.

AGAR 401.602 Contracting officers.

401.602-3 Ratification of unauthorized commitments.

(a) Definitions. "Ratification," as used in this section, means the signed, documented action taken by an authorized official to approve and sanction a previously unauthorized commitment.

"Unauthorized commitment," as used in this section, means an agreement made by a Government representative who lacked the authority to enter into a contract on behalf of the Government.

(b) Policy. The HCA may delegate ratification authority to the chief of the contracting office.

(c) Procedure. Whenever an official of the cognizant contracting activity who is authorized to ratify unauthorized commitments learns that a person or firm has assumed work as a result of an unauthorized commitment, that official shall take the following actions:

(1) Immediately inform any person who is performing work as a result of an unauthorized commitment that the work is being performed at that person's risk;

(2) Inform the individual who made the unauthorized commitment of the seriousness of the act and the possible consequences;

(3) Ensure that the individual who made the unauthorized commitment furnishes all records and documents concerning the commitment and a complete, written statement of facts, including, but not limited to: a statement as to why a contracting officer was not used; why the vendor was selected and a list of sources considered; a description of work to be performed or products to be furnished; the estimated or agreed price; whether an appropriation is available for the work; and whether performance has begun. Under exceptional circumstances, such as when the individual who made the unauthorized commitment is no longer available to attest to the circumstances of the unauthorized commitment, the ratifying official may waive these requirements; and

(4) Decide whether ratification is proper and proceed as follows:

(i) If ratification is not justifiable, provide the cognizant program office, contracting office, and the unauthorized contractor with an explanation of the decision not to ratify.

(ii) If ratification appears adequately justified, ratify the action and retain or assign the contract to a successor contracting officer if necessary.

(iii) Maintain related approval, decisional, and background documents in the contract file for audit purposes.

(iv) Notify the cognizant program supervisor or line officer about the final disposition of the case; the notification may include a recommendation that the unauthorized commitment should be further considered a violation of USDA's employee conduct regulations.

4G01.602-3 - Ratification of Unauthorized Commitments

(a)  Ratification authority may be delegated to the Chief of the Contracting Office (COCO) if the COCO is warranted for actions up to the limits of their Simplified Acquisition Threshold (SAT) Contracting Officer appointment authority (that is, Simplified A and B warrants).  If the COCO is not warranted, or if the action exceeds the SAT, ratification authority is limited to the HCA or HCAD.

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Matthew – I understand your comment but my read is this.  “Policy” at (b) has no and/or.  So each sentence stands on its own.

So the policy is –

Ratifications of any unauthorized commitment must follow (c) as this number (2) paragraph does not carve out any exceptions.

Extending to the discussion in this thread (5) is saying (noting that I am repeating myself) once ratified per (2) then follow Contract Disputes if the contractor files a claim again noting that an REA is sometimes a claim and sometimes is not.

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Vern –

I was only following your lead on “history” because you said this “ I can change my mind in the course of 17 years. I can change it in an instant if it serves my purpose. “   So as I said everyone can change their mind even the drafters of procurement policy and the courts in the 73 years from 1944 through to today.

When all is said and done and referencing the response I have provided to Jamaal in this thread agencies are no further in making the bureaucratic process of controlling unauthorized commitments less bureaucratic.   And in the very example we have been discussing I agree ratification should be simple but I retain my thinking that leaving it to CO’s solely in the case of unauthorized commitments arising under or relating to  a contract is absent proper oversite for proper fiscal control and for prevention of fraud, waste and abuse.  I agree that everyday CO’s handle the matter of an unauthorized commitment in the manner you and ji suggest but as I have tried to relay it is not the best oversight.   I stated early on that ratifications in some instances should be a slam dunk and in the case that has been used as an example in this thread it is one that should be but all the same a ratification should take place before the REA becomes a modification to the contract.

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5 hours ago, C Culham said:

Matthew – I understand your comment but my read is this.  “Policy” at (b) has no and/or.  So each sentence stands on its own.

So the policy is –

Ratifications of any unauthorized commitment must follow (c) as this number (2) paragraph does not carve out any exceptions.

Extending to the discussion in this thread (5) is saying (noting that I am repeating myself) once ratified per (2) then follow Contract Disputes if the contractor files a claim again noting that an REA is sometimes a claim and sometimes is not.

C Culham,

I don't know what FAR you're reading - paragraph ( c ) is clearly applicable to ONLY paragraph (b)(2) and paragraph (b)(5) doesn't even use the word "ratify" or "ratification" it uses the terms "claims" and "processed."  I think Vern provided as good an explanation as possible and I attempted to show you through a different lens, though it seems you're stuck in your own beliefs (which if you take the time to think carefully, contradict themselves..."each sentence stands on its own").  So be it.

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18 hours ago, Matthew Fleharty said:

I don't know what FAR you're reading

18 hours ago, Matthew Fleharty said:

you're stuck in your own beliefs (which if you take the time to think carefully, contradict themselves..."each sentence stands on its own").  

Matthew - Please do not start.  

I am reading the current FAR, current supplements to the FAR, and current  interpretations of the FAR  that ratification as provided for in FAR 1.602-3 is a process where a Government official makes an after-the-fact approval of an unauthorized commitment (obligation) that was made by a Government employee who did not have the authority to otherwise obligate the Government. The obligation is not binding on the Government because the person lacked authority to make the obligation, so the seller (FAR Part 2 definition of a contract) has no legal basis to demand payment. In order for the seller to get paid, an appropriate Government official must ratify the unauthorized commitment, making the obligation binding after the fact.  A seller that has done work in response to an unauthorized commitment may well submit the REA, but the REA can not be acted on until it is determined that a valid obligation exists - ratification does this.    

Now folks will try all kinds of things to throw out to change the scenario first stated in this thread as to how an unauthorized commitment can simply be handled under Contract Disputes such as implied contract or quantum merit.  Yes they might have a bearing but they are common at law doctrines that the CO would express to the ratifying official to consider in approving or not the unauthorized commitment. 

I have thought about what I have read, very carefully, I might add.   I do not drink the potion just because someone tells me I have to.   I determine on my own through foundations whether I should and then I either drink it or I do not.  And that is it!

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Well, I wasn’t quite done after all.

I have never seen a better example of the conflicts that arise from “thinking outside the box.”

Have you ever taken a touchy-feely class in which you were asked to solve the nine-dot-one-line puzzle? If you’re not familiar with that puzzle and its solution, it’s shown here https://www.youtube.com/watch?v=XrwnrpFVugw and at many other websites.

As you can see, you cannot solve the puzzle while staying inside the “box” formed by the nine dots. You have to go outside the box in order to solve it.

Some people complain that the solution is a cheat. But careful review of the rules will show that they do not state that you have to stay in the box (or that you could not go outside the box). Most people encountering that puzzle for the first time assume that is the rule (I did—my wife had to show me), but it isn’t. Making that assumption is a case of being in a “box”.

By “thinking outside the box” I’m not talking about breaking the rules. I’m talking about interpreting them without assumptions and with your eyes wide open.

If someone believes, assumes, or thinks that there is one definite interpretation of everything in FAR, then they might be in a box. (It has happened to me, and I have done it to myself.) If so, they might be troubled by what seems to be an unorthodox interpretation. The interpretation is not demonstrably wrong--although some people will go through contortions trying to prove that it is--but someone in a box might think: That simply is not so! It’s against the rules!

I discuss a momentous example of going outside the box here: http://www.wifcon.com/analy/highest.pdf

In this thread Carl Culham and I have been bickering about the proper interpretation of the rule about ratification of unauthorized commitments. The rule is in FAR 1.602-3, which prescribes the ratification procedure.

Quote

1.602-3 Ratification of unauthorized commitments.

(a) Definitions.

“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.

(b) Policy.

(1) Agencies should take positive action to preclude, to the maximum extent possible, the need for ratification actions. Although procedures are provided in this section for use in those cases where the ratification of an unauthorized commitment is necessary, these procedures may not be used in a manner that encourages such commitments being made by Government personnel.

(2) Subject to the limitations in paragraph (c) of this subsection, the head of the contracting activity, unless a higher level official is designated by the agency, may ratify an unauthorized commitment.

(3) The ratification authority in paragraph (b)(2) of this subsection may be delegated in accordance with agency procedures, but in no case shall the authority be delegated below the level of chief of the contracting office.

(4) Agencies should process unauthorized commitments using the ratification authority of this subsection instead of referring such actions to the Government Accountability Office for resolution. (See 1.602-3(d).)

(5) Unauthorized commitments that would involve claims subject to resolution under 41 U.S.C. chapter 71, Contract Disputes, should be processed in accordance with Subpart 33.2, Disputes and Appeals.

(c) Limitations. The authority in paragraph (b)(2) of this subsection may be exercised only when—

(1) Supplies or services have been provided to and accepted by the Government, or the Government otherwise has obtained or will obtain a benefit resulting from performance of the unauthorized commitment;

(2) The ratifying official has the authority to enter into a contractual commitment;

(3) The resulting contract would otherwise have been proper if made by an appropriate contracting officer;

(4) The contracting officer reviewing the unauthorized commitment determines the price to be fair and reasonable;

(5) The contracting officer recommends payment and legal counsel concurs in the recommendation, unless agency procedures expressly do not require such concurrence;

(6) Funds are available and were available at the time the unauthorized commitment was made; and

(7) The ratification is in accordance with any other limitations prescribed under agency procedures.

(d) Nonratifiable commitments. Cases that are not ratifiable under this subsection may be subject to resolution as recommended by the Government Accountability Office under its claim procedure (GAO Policy and Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 2), or as authorized by FAR Subpart 50.1. Legal advice should be obtained in these cases.

Our disagreement centers on subparagraph (b)(5). We discussed that rule in the context of the following scenario and assertion, which I posted:

Quote

Suppose that you have a contract under which a contractor is working remotely from the contracting office with an onsite COR who does not have change order authority. Suppose that something happens that needs immediate attention, but there is no way to reach the CO on short notice, so the COR "directs" the contractor to take a course of action that constitutes a within-scope change. The contractor does it and later sends a non-claim (it's not certified) REA to the CO.

The CO knows that the COR had no authority to direct the change and that the government is not bound to pay. However, the CO also knows that had the COR been able to reach her she would have issued the a change order to the same effect and thinks that the COR and the contractor took a reasonable course of action. The cost to the government would have been much greater than the amount sought in the REA had the COR not taken immediate action and had the contractor refused to comply.

Still, there was an unauthorized commitment, and FAR 1.602-3(b)(3) means that the CO cannot ratify, and ratification is a hassle.

FAR 1.602-3(b)(5) states: "Unauthorized commitments that would involve claims subject to resolution under 41 U.S.C. chapter 71, Contract Disputes, should be processed in accordance with Subpart 33.2, Disputes and Appeals." FAR 33.210, "Contracting officer's authority," says:

Quote:

Except as provided in this section, contracting officers are authorized, within any specific limitations of their warrants, to decide or resolve all claims arising under or relating to a contract subject to the Disputes statute. In accordance with agency policies and 33.214, contracting officers are authorized to use ADR procedures to resolve claims. The authority to decide or resolve claims does not extend to (a) A claim or dispute for penalties or forfeitures prescribed by statute or regulation that another Federal agency is specifically authorized to administer, settle, or determine; or (b) The settlement, compromise, payment, or adjustment of any claim involving fraud.

Thus, while the CO has no authority under FAR 1.602-3 to ratify an unauthorized commitment, she does have authority under statuteto resolve all claims and can settle the REA with the contractor in that way, without ratification. And under these circumstances, she should.

In opposition to that post Carl has asserted that the CO cannot agree to pay the contractor without first obtaining a ratification of the COR’s unauthorized commitment. I don't agree.

What does paragraph (b)(5) mean in terms of specific procedure? It's not immediately apparent. The FAR councils put it there without explanation. Arguably, it is subject to more than one interpretation, and so I’m going to interpret it as best I can, which from Carl’s perspective is outside the box.

I interpret the plain language of FAR 1.602-3(b)(5)--which comes at the very end of paragraph (b); which explicitly directs COs to the CDA and FAR Subpart 33.2; which does not refer to subparagraphs (b)(2) or (c); and which does not contain the words ratify and ratification, which appear in all of the other subparagraphs of paragraph (b)--as telling COs to settle claims involving unauthorized commitments pursuant to FAR Subpart 33.2 instead of FAR 1.602-3(b)(2) and (c).

Consider the following:

  • Within paragraph (b), paragraphs (b)(2) and (b)(5) are at the same level of subordination and neither mentions the other.
  • Paragraph (b)(2) and (c) refer to each other. Neither refers to (b)(5), and (b)(5) does not refer to them.
  • Paragraph (b)(5), is a complete sentence, and, as Carl said, "So each sentence stands on its own." The sentence that comprises (b)(5) does not say: Unauthorized commitments that would involve claims subject to resolution under 41 U.S.C. chapter 71, Contract Disputes, should be processed in accordance with Subpart 33.2, Disputes and Appeals and paragraphs (b)(2) and (c) of this subsection.
  • Paragraph (b)(5) contemplates Contract Disputes Act (CDA) claims that involve unauthorized commitments. The CDA gives the contracting officer sole authority to decide "any" claims relating to a contract.
  • Neither the CDA nor FAR Subpart 33.2 make any mention of ratification being a condition precedent to settlement or issuance of a contracting officer final decision.
  • Except for the Department of Education FAR Supplement, 48 CFR 3401.602-3(b)(5), I know of no regulation, policy statement, or case law that requires ratification as a condition precedent to a CO final decision. Arguably the Department of Education’s policy is the exception that proves the rule.
  • Finally, the ratification procedure in FAR 1.602-3(b)(2) and (c) is not prescribed by statute and is not explicitly applicable to CDA claims. FAR 1.102(e) and 1.102-4(e) say that if the law does not require us to do something, then we don’t have to, and that if it does not prohibit us from doing something, then we may do it.

Some might ask under what authority the CO in my scenario could grant a contract price adjustment. After all, the government is not contractually bound by unauthorized acts of CORs. The CO could deny the REA and a subsequent claim on that basis, but she does not have to deny it. I say that the issue confronting the CO in the scenario is not whether the COR had authority and not whether the contractor is contractually entitled. I say that the issue is whether the contractor should be compensated as a matter of equity. I say that ratification is not necessary. The CO can use his own authority to grant relief in the interests of fairness and to avoid a dispute, if possible, as urged by FAR 33.204.

Some might ask where the law says that a CO can do that? Well, where does the law say that a CO cannot? FAR 1.602-2, Responsibilities, says “contracting officers should be allowed wide latitude to exercise business judgment. Contracting officers shall… (b) ensure that contractors receive impartial, fair, and equitable treatment.” I say that the CO could compensate the contractor even if he or she is not legally required to do it, if equity demands it.

In a case that I cited in an earlier post, the old Court of Claims (predecessor to the Federal Circuit) said: “Contracting officers and heads of departments should exercise the great powers conferred on them by these contracts to do equity: they should not feel under obligation to take advantage of technicalities, where to do so would defeat justice.”

If the CO thinks that agreeing to a contract price adjustment is a matter of fairness, then the CO should grant the requested relief, assuming that it’s fair and reasonable. The contractor provided the government with a necessary service, one that that the CO would have ordered if he or she had been able, one that saved government money. COs supposed to exercise business judgment. Would it be good business to deny a reasonable request for compensation, to refuse to “do equity”? Doesn’t the government have an implied duty of fair dealing? Wouldn’t reasonable compensation for services needed and received be fair dealing and good judgment in this case?

The skirmish between Carl and me is of a kind that is fought in contracting offices almost daily. It is of a kind that has been fought in contracting offices since time immemorial whenever the rules governing a situation are not explicit or are vague or ambiguous in some way.

As contracting practitioners, each of us will either do what we think best or what we’re told to do, or we’ll freeze, stall, and do nothing for fear of being wrong. Each of us must choose his or her own approach to reading and interpreting the FAR when an issue arises.

Some assert that the FAR is an obstacle to innovation. Others say that it’s only an obstacle to those who make it that way. See, e.g.:

Don’t Fight The FAR: Innovation And Regulation Can Go Hand In Hand http://www.publicspendforum.net/blogs/jonathan-messinger/2017/01/10/podcast-dan-ward-far-federal-acquisition-regulation-innovation

Can the federal acquisition process support innovation? https://www.fedscoop.com/really-needs-done-acquisition-reform/ (Be patient. It takes a moment for that to load.)

Reform the FAR? Maybe you should try reading it first… https://about.bgov.com/blog/reform-the-far-maybe-you-should-try-reading-it-first

What does innovation really mean? http://www.federaltimes.com/articles/what-does-innovation-really-mean

FAR Part 1: ‘If it’s not prohibited, it’s allowed’https://fcw.com/blogs/lectern/2014/05/far-part-1.aspx

If any of you decide that you will read the plain language of the regulation, read the regulation as a whole, apply the policies in FAR 1.102(e) and 1.102-4(e), and occasionally think outside the box, then learn how to state and frame an issue and how to argue and see both sides of a disagreement. Be ever ready for those who might say, “You must do this,” “You can’t do that,” or “You can’t do that that way.” Be ready to lose some skirmishes and an occasional battle. And be ready to be wrong from time, because it’ll happen.

Finally, a few colleagues reacted with this: Oh, hell, if you think you should pay the contractor just issue a backdated change order and consider it documenting the file. :ph34r:

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17 hours ago, Vern Edwards said:

Finally, a few colleagues reacted with this: Oh, hell, if you think you should pay the contractor just issue a backdated change order and consider it documenting the file. 

Hmmm. If you think you should pay the contractor just lie and back date necessary documentation in the automated procurement system. After all, it's only a little white lie. Everbody's doing it these days, aren't they? 

How about trying something more honest? Like, the COR tells the KO the next day that they had to direct the contractor and couldn't reach the KO and the KO or ACO creates a change order letter or change order mod , with funds, and issues it that day. 

Edit: as one who has reviewed and/or written hundreds of construction contract mods, one can't necessary tell by reading a mod file that the work was or wasn't directed prior to the paperwork.  Of course, if the change is large enough to require an audit or review of payrolls or other contractor procurement files, they might   reveal to someone that the activity or activities preceded the written order...

Certainly, one can truthfully document an effective date earlier than the actual mod signature date in the mod.  That's not necessarily "backdating". I'm not sure and have asked a colleague whether it is even possible to "backdate" newly  created documents or actions in the automated contracting systems these days.  

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Who said anything about lying? The purpose of backdating is to document the file to cover contractor costs. I backdated stuff more than once and put a memo in the file. Backdating is not necessarily illegal. It depends on how and why it's done.

See for example EDL Construction, Inc., ASBCA No. 39599, 90-3 BCA P 23049:

Quote

On 8 June 1989, the Government took usuable possession of the building, backdating the occupancy date to 24 May 1989 to relieve EDL of responsibility for some liquidated damages because of the Government's failure to inspect for 8 days after EDL's request (R4, tab 17).

By the way, the courts have found implied authority when a COR has ordered a contractor to do something in an emergency. No ratification necessary. A CO can do the same. Issuing a backdated change order would just be documenting the file.

 

 

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More on backdating. This quote is from a Court of Federal Claims decision (not a contracting decision) in which the plaintiff complained that the FBI backdated documents:

Quote

There is “nothing nefarious” about the cancellation and backdating of Plaintiff's records; the FBI simply self-identified and remedied a payment error. Gov't Reply at 7. Therefore, Plaintiff's claim for backpay is based upon a mistake in classification that was corrected before this case was filed. Gov't Reply at 7.

Williams v. U.S., 130 Fed. Cl. 761 (2017)

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Without clarification of the context of the original comment, I assume that it means assigning an earlier date to the document(s) than the actual date(s). "Oh hell, ...just issue a backdated change order..."

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8 minutes ago, Vern Edwards said:

More on backdating. This quote is from a Court of Federal Claims decision (not a contracting decision) in which the plaintiff complained that the FBI backdated documents:

Williams v. U.S., 130 Fed. Cl. 761 (2017)

In this context, backdating the documentation was necessary to correct an error to show the actual dates,  not to change the story. 

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On SF30, in block 3, "Effective Date," I'd put the date on which the COR gave the direction and in block 16C I'd put the actual date on which I signed the mod.

Contracting Officership 101.

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3 minutes ago, Vern Edwards said:

On SF30, in block 3, "Effective Date," I'd put the date on which the COR gave the direction and in block 16C I'd put the actual date on which I signed the mod.

Contracting Officership 101.

Thanks for the clarification.  I agree with that course of action, consistent with what I said above.   

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In a memo to file I'd explain the circumstances, state that the COR took an appropriate course of action in a situation of urgency in which immediate action was necessary and there was no way to contact me in a timely fashion--the action that I would have taken had the COR been able to contact me. I'd explain that the COR's action and the contractor's cooperation saved government money and were in the best interests of the government and that I considered it to be within the scope of his authority notwithstanding the COR appointment letter.

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4 minutes ago, Vern Edwards said:

In a memo to file I'd explain the circumstances, state that the COR took an appropriate course of action in a situation of urgency in which immediate action was necessary and there was no way to contact me in a timely fashion--the action that I would have taken had the COR been able to contact me. I'd explain that the COR's action and the contractor's cooperation saved government money and were in the best interests of the government and that I considered it to be within the scope of his authority notwithstanding the COR appointment letter.

Vern, Thanks for the further clarification. 

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One more thing. I would write a letter to the COR, copy to his boss, my boss, and the contractor, commending him for taking an appropriate course of action under unusual circumstances, but reminding him that in ordinary circumstances, or when he can reach me it time for me to take action, he has no authority to modify the contract.

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11 minutes ago, Vern Edwards said:

One more thing. I would write a letter to the COR, copy to his boss, my boss, and the contractor, commending him for taking an appropriate course of action under unusual circumstances, but reminding him that in ordinary circumstances, or when he can reach me it time for me to take action, he has no authority to modify the contract.

Yep 

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I appreciate that Vern has reposted his previous posts of this discussion as they provided a refreshed look at what has been said.

Vern has provided that the contractor has submitted a “non-claim”.  Then he goes on to say that the REA can be settled under the Contract Disputes.

How can the Contract Disputes be used to settle an REA that is a non-claim?   The answer is quite easy as the REA as it has been stated in this particular instance is neither a written demand or written assertion, it is a request of equitable adjustment,  as such is not subject to Contract Disputes.

As I stated in my very first post in this discussion “I fear the discussion is too broad with regard to CDA.”   And it remains that way.

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1 hour ago, C Culham said:

Vern has provided that the contractor has submitted a “non-claim”.  Then he goes on to say that the REA can be settled under the Contract Disputes. How can the Contract Disputes [sic] be used to settle an REA that is a non-claim?  

As I previously posted, here is FAR 1.602-3(b)(5):

Quote

(5) Unauthorized commitments that would [conditional mood-not does] involve claims subject to resolution under 41 U.S.C. chapter 71, Contract Disputes, should be processed in accordance with Subpart 33.2, Disputes and Appeals. The answer is quite easy as the REA as it has been stated in this particular instance is neither a written demand or written assertion, it is a request of equitable adjustment,  as such is not subject to Contract Disputes.

The REA doesn't have to actually be a claim for the CO to process it in accordance with Subpart 33.2. As I previously posted, see FAR 33.204:

Quote

The Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim.

But if Carl is still unconvinced, the CO could tell the contractor to complete the claim certification so the REA would be a claim. Easy peasy.

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2 hours ago, Vern Edwards said:

t if Carl is still unconvinced, the CO could tell the contractor to complete the claim certification so the REA would be a claim. Easy peasy.

But that, of course, defeats the intent of the government's policy at 33.204 to make reasonable efforts to resolve controversies prior to the submission of a claim. 

Like Vern, the last time I checked, 33.204 is under "Subpart 33.2", seemingly in accordance with FAR 1.602-3(b)(5). 

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13 hours ago, Vern Edwards said:

The REA doesn't have to actually be a claim for the CO to process it in accordance with Subpart 33.2. As I previously posted, see FAR 33.204:

The above quote does not see congruent with the DFARS.  Likewise the easy peasy is now becoming more messy pesi.  Sounds like all the documentation that is being proposed like writing a letter, asking now for two certifications, or is it just one, is tantamount to doing a request for ratification?   I already did the ratification request and got it approved and issued the modification by the time I waded through letters, certifications, etc.     Just saying but like Vern I will let others be the judge. 

 

243.204-71 Certification of requests for equitable adjustment.

(a) A request for equitable adjustment to contract terms that exceeds the simplified acquisition threshold may not be paid unless the contractor certifies the request in accordance with the clause at 252.243-7002.

(b) To determine if the dollar threshold for requiring certification is met, add together the absolute value of each cost increase and each cost decrease. See PGI

243.204-71(b) for an example.

(c) The certification required by 10 U.S.C. 2410(a), as implemented in the clause at 252.243-7002, is different from the certification required by 41 U.S.C. 7103, Disputes. If the contractor has certified a request for equitable adjustment in accordance with 10 U.S.C. 2410(a), and desires to convert the request to a claim under the Contract Disputes statute, the contractor shall certify the claim in accordance with FAR subpart 33.2.

252.243-7002  Requests for Equitable Adjustment.

 

As prescribed in 243.205-71, use the following clause:

 

REQUESTS FOR EQUITABLE ADJUSTMENT (DEC 2012)

 

      (a)  The amount of any request for equitable adjustment to contract terms shall accurately reflect the contract adjustment for which the Contractor believes the Government is liable.  The request shall include only costs for performing the change, and shall not include any costs that already have been reimbursed or that have been separately claimed.  All indirect costs included in the request shall be properly allocable to the change in accordance with applicable acquisition regulations.

 

      (b)  In accordance with 10 U.S.C. 2410(a), any request for equitable adjustment to contract terms that exceeds the simplified acquisition threshold shall bear, at the time of submission, the following certificate executed by an individual authorized to certify the request on behalf of the Contractor:

 

I certify that the request is made in good faith, and that the supporting data are accurate and complete to the best of my knowledge and belief.

 

 

 

 

 

(Official’s Name)

 

 

 

 

 

(Title)

 

 

      (c)  The certification in paragraph (b) of this clause requires full disclosure of all relevant facts, including¾

 

              (1)  Certified cost or pricing data, if required, in accordance with subsection 15.403-4 of the Federal Acquisition Regulation (FAR); and

 

              (2)  Data other than certified cost or pricing data, in accordance with subsection 15.403-3 of the FAR, including actual cost data and data to support any estimated costs, even if certified cost or pricing data are not required.

 

      (d)  The certification requirement in paragraph (b) of this clause does not apply to¾

 

              (1)  Requests for routine contract payments; for example, requests for payment for accepted supplies and services, routine vouchers under a cost-reimbursement type contract, or progress payment invoices; or

 

              (2)  Final adjustments under an incentive provision of the contract.

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Joel - Actually the FAR says this -

"The Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim."

 

Not this

13 hours ago, joel hoffman said:

But that, of course, defeats the intent of the government's policy at 33.204 to make reasonable efforts to resolve controversies prior to the submission of a claim.

So are you saying that a person who lacks authority and makes an unauthorized commitment has made a contract?  If so why have ratification at all?   For Contract Disputes to kick in you must have a "contractual issue" shouldn't you?

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@Joel:

Carl said:

42 minutes ago, C Culham said:

So are you saying that a person who lacks authority and makes an unauthorized commitment has made a contract?  If so why have ratification at all?   For Contract Disputes to kick in you must have a "contractual issue" shouldn't you?

There is a contractual issue. The REA in my scenario seeks relief in a matter related to a contract. Whether the COR did or did not have authority to direct the contractor is an issue that the CO, by law, must decide and issue a final decision.

A person without actual authority to change a contract might have had implied authority to do so. See Baistar Mechanical, Inc. v. U.S., 128 Fed. Cl. 504 (COFC) (Sept. 28, 2016). See also Cibinic, et. al. Administration of Government Contracts, 5th, 41-44. That is a question the CO in my scenario would have to consider and a matter that she will have to decide.

Pursuant to FAR, the ratification process does not apply in scenarios such as the one that I described. As to why have ratification at all, it's for cases when a government employee without authority makes a buy that is unrelated to the administration of any existing contract.

I'm off to the ranch this morning for several days to help brand calves. It's six driving hours east of Portland, and we have no reliable internet service out there, so I won't be able to respond to any more of Carl's posts. In any case, I've made the best arguments that I can, so you and other readers are on your own. You either buy my position by now or you don't.

Vern

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4 hours ago, C Culham said:

 

Joel - Actually the FAR says this -

"The Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim."

 

Not this

So are you saying that a person who lacks authority and makes an unauthorized commitment has made a contract?  If so why have ratification at all?   For Contract Disputes to kick in you must have a "contractual issue" shouldn't you?

Q1:  No. 

Q2: N/A  there is no contract.  

Q3: I was simply replying to Vern's suggestion that if you aren't convinced that the matter doesn't have to be ripened to a "dispute" to be handled under FAR 33.2, the KO could tell the contractor to turn it into a formal claim.  To do that would be in contradiction to the policy stated in 33.204, which is for the Government to try to resolve the matter before it becomes a claim.  FAR 33.204 is under FAR 33.2, so the matter doesn't necessarily have to be in dispute and/or a formal claim.

Also Q3: In the example described, I'm assuming that there was some type of emergency or other situation where the COR and/or contractor were trying to mitigate impacts of delays in issuing corrective actions and where the COR directed an in-scope change (without the authority to do so) after trying to contact the KO.  So,  one could assume that it is a "contractual issue",  versus an out of scope UCA.  

- As for "why have a ratification at all?" , certainly for UCA/ out of scope new contract actions - if and when the KO/government wants to pay the contractor.  Possibly for in-scope, purposely directed changes.  However, I wasn't addressing every situation.  

In this instance, I suggested that (assuming that the KO would have issued a change order on the original day, had he/she known of the need - as described in the scenario) the  COR should tell the KO the next day that they had to direct the contractor and couldn't reach the KO. The KO or ACO could create a change order by letter or change order mod as appropriate, with funding, and issue it that day or ASAP, before it becomes a "controversy" and probably before the contractor could expend a whole lot of extra cost. 

I agreed that the KO should remind all involved that this was an anomaly and that the COR doesn't have the authority to issue changes. 

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Things might be different if it was a situation where the COR and the contractor  failed to promptly notify the contracting officer of the directed change.   While the changes clause allows for 20 or more days to notify the government of a directed change, in our post aWard conference with the contractor,  the government instructs the contractor to immediately notify the ACO or KO that it has received a directive which it believes to be a change to the contract.

Under the circumstances described in the scenario under this thread, I believe that would be the proper course of action. 

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