I think you are getting overwhelmed and I’m not sure what you know about ’institutional ratifications’ and the FAR System. However, not all clauses are mandated by law.

It might be helpful to focus on a specific fact pattern rather than abstractions. I don’t want to misled or be misunderstood.

8 minutes ago, Jacques said:

The point of my post wasn't to force an unwilling ratifying official to look elsewhere for help.  If the ratifying official wants to deny ratification, that decision isn't really subject to review.  For some folks, the fact it isn't subject to review is proof enough that the decision is entrusted to the discretion of the decision maker.  Others might want to dig a little deeper. 

What do you mean isn’t subject to review? Review by whom? I’ve been a ratifying official and my decisions were surely subject to review.

1 minute ago, Jamaal Valentine said:

What do you mean isn’t subject to review? Review by whom? I’ve been a ratifying official and my decisions were surely subject to review.

I meant review outside the contracting functional chain of your organization.

11 minutes ago, Jamaal Valentine said:

I think you are getting overwhelmed and I’m not sure what you know about’ institutional ratifications.’

The OP is about the meaning of FAR 1.602-3(c)(3), so let's limit the discussion to ratifications under FAR 1.602-3, please.

15 minutes ago, Jacques said:

The OP is about the meaning of FAR 1.602-3(c)(3), so let's limit the discussion to ratifications under FAR 1.602-3, please.

So what is your question as it relates to this? Assuming you have one, please be clear and concise. Otherwise, I’ll continue enjoying your commentary. Cheers!

2 hours ago, Jacques said:

How would a ratifying official go about coming to an authoritative resolution?

😂 Ask their lawyer for a written opinion. That is what I'd do before ratifying anything. To quote Bogie, "I stick my neck out for nobody."

13 minutes ago, Jamaal Valentine said:

So what is your question as it relates to this? Assuming you have one, please be clear and concise. Otherwise, I’ll continue enjoying your commentary. Cheers!

I think the question is in the title of the thread - what does "resulting contract would otherwise have been proper" mean?

it seems there are two schools of thought on the matter - 1. that it's really the "resulting contract" being proper that matters, and 2. it's both the "resulting contract" and the process by which the contract was put in place that must be "otherwise proper" for the action to be ratifiable. In other words, can a "resulting contract" be considered "otherwise proper" if all the regulatory requirements were not followed?

47 minutes ago, Jacques said:

I'm really super curious about the significance of your discussion of deviations.  Please help me connect the dots as to why it is relevant to this discussion.  If the ratifying official and the vendor cannot reform the agreement to make it legal, then you would never get to whether or not a deviation is possible.  (By the way, not to complicate matters, but I think a deviation from including the clause at FAR 252.222-7006 is "precluded by law," to quote FAR 1.402.)

The deviation from FAR approval authority and ratifying official(s) are likely contracting officers by certificate of appointment or by virtue of their position (e.g., Agency Head or HCA). If a FAR deviation is what is keeping the resulting contract from being otherwise proper, the certain officials could remedy this if they may deviate from FAR. Thus, the resulting contract would otherwise have been proper if made by an appropriate contracting officer (e.g., Agency Head or HCA).

Also, DFARS 252.222-7006’s applicability to a particular contract or subcontract is waiverable.

NOTE: “the head of the contracting activity, unless a higher level official is designated by the agency, may ratify an unauthorized commitment.” FAR 1.602-3(b)

 

33 minutes ago, MileHighAcq said:

I think the question is in the title of the thread - what does "resulting contract would otherwise have been proper" mean?

I understand your question. I was asking Jacques about any question he may have.

33 minutes ago, MileHighAcq said:

In other words, can a "resulting contract" be considered "otherwise proper" if all the regulatory requirements were not followed?

I believe the answer is yes [it can]. I offered the deviation from FAR as one example. Remember, the FAR System includes agency supplements.

While “[n]o contract shall be entered into unless the contracting officer ensures that all requirements of … regulations, and all other applicable procedures, including clearances and approvals, have been met,” I believe Agency Heads and HCAs can deviate from or waive some of these requirements. I believe they may do so through ratifications.

 

2 minutes ago, Jamaal Valentine said:

While “[n]o contract shall be entered into unless the contracting officer ensures that all requirements of … regulations, and all other applicable procedures, including clearances and approvals, have been met,” I believe Agency Heads and HCAs can deviate from or waive some of these requirements. I believe they may do so through ratifications.

In Formation, Cibinic and Nash discuss deviations and waivers in pages 69-72.

28 minutes ago, Jamaal Valentine said:

The deviation from FAR approval authority and ratifying official(s) are likely contracting officers by certificate of appointment or by virtue of their position (e.g., Agency Head or HCA). If a FAR deviation is what is keeping the resulting contract from being otherwise proper, the certain officials could remedy this if they may deviate from FAR. Thus, the resulting contract would otherwise have been proper if made by an appropriate contracting officer (e.g., Agency Head or HCA).

Also, DFARS 252.222-7006’s applicability to a particular contract or subcontract is waiverable.

NOTE: “the head of the contracting activity, unless a higher level official is designated by the agency, may ratify an unauthorized commitment.” FAR 1.602-3(b)

 

wouldn't it be easier to just modify the contract to add the missing clause? assuming I guess that it's just an oversight and there isn't some valid reason for not having the clause in the contract.

21 minutes ago, Jamaal Valentine said:

I believe the answer is yes [it can]. I offered the deviation from FAR as one example. Remember, the FAR System includes agency supplements.

While “[n]o contract shall be entered into unless the contracting officer ensures that all requirements of … regulations, and all other applicable procedures, including clearances and approvals, have been met,” I believe Agency Heads and HCAs can deviate from or waive some of these requirements. I believe they may do so through ratifications.

 

so are you saying is that in choosing to ratify an action, the HCA is in essence waiving process requirements and deviating from contract requirements (Ts&Cs), which they have the authority to do? in that case a ratification is the ratifying official saying even though the "resulting contract" is not "otherwise proper" because it was not done by a CO and the appropriate processes weren't followed, by ratifying the action, I'm essentially waiving the process requirements and deviating from any contract requirements - which is within my authority. is that basically it?

11 minutes ago, MileHighAcq said:

wouldn't it be easier to just modify the contract to add the missing clause?

Sure. I’ll go as far as saying this is the most likely course of action throughout government. Nonetheless, under FAR, the contracting officer lacked the authority to award the contract without the required clause, right? 

14 minutes ago, Jamaal Valentine said:

Sure. I’ll go as far as saying this is the most likely course of action throughout government. Nonetheless, under FAR, the contracting officer lacked the authority to award the contract without the required clause, right? 

right. but we're talking here about ratifications, where the person lacked the authority enter into a contract, not a contracting officer, and really, in most cases there's no contract in place at all until the action is ratified.

it gets really tricky with FAR 1.602-1 because we issue contracts all the time where the CO missed a required clause or two, or missed a step or two in the process (e.g., did not synopsize properly, did not document market research, did not get proper approvals on a J&D or missed a required D&F, etc.). Are we going to say that all those are unauthorized commitments requiring ratification? I think not. but that's beyond the purview of this thread.

1 hour ago, MileHighAcq said:

but we're talking here about ratifications, where the person lacked the authority enter into a contract

it gets really tricky with FAR 1.602-1 because we issue contracts all the time where the CO missed a required clause or two, or missed a step or two in the process (e.g., did not synopsize properly, did not document market research, did not get proper approvals on a J&D or missed a required D&F, etc.). Are we going to say that all those are unauthorized commitments requiring ratification? I think not. but that's beyond the purview of this thread.

I think we can agree that either the Government representative has the authority or lacks it. What happens when they lack the authority? Here, you’re talking about ratifications [within or outside of FAR].

I mentioned institutional ratifications earlier, but I’ll leave that idea there for you to research if interested.

I suggest reading the reference Vern provided earlier. Check out ‘unauthorized variations’ and contract avoidance.

2 hours ago, Vern Edwards said:

In Formation, Cibinic and Nash discuss deviations and waivers in pages 69-72.

I think a ratifying official could invoke the Christian Doctrine to add a missing mandatory clause.

1 hour ago, Vern Edwards said:

I think a ratifying official could invoke the Christian Doctrine to add a missing mandatory clause.

Brilliant!

EDIT:  I came back here to compose a post saying Vern had convinced me I was reading FAR 1.602-3(c)(3) incorrectly.  For what it's worth, I got there from the definition of unauthorized commitment.  As noted in FAR 1.602-3(a):

Quote

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.

Usually what that means to me is that all the "elements of a contract" are there except authority:  offer, acceptance, consideration, sufficiently definite terms, etc.  Another element of a contract is that the subject matter of the contract is legal.  If the contract is void at its inception rather than merely being voidable, then there's more afoot relevant to the existence of a binding contract than just lack of authority.

If the putative "unauthorized commitment" does not qualify as an "unauthorized commitment" because it is missing more than just a Government representative with authority to enter into the agreement on behalf of the Government, then the agreement does not even qualify as an "unauthorized commitment."

I think Vern's reference to the Christian Doctrine solves that hiccup for me.

38 minutes ago, Jacques said:

If the putative "unauthorized commitment" does not qualify as an "unauthorized commitment" because it is missing more than just a Government representative with authority to enter into the agreement on behalf of the Government, then the agreement does not even qualify as an "unauthorized commitment."

I think Vern's reference to the Christian Doctrine solves that hiccup for me.

so does this lead you to conclude that most actions where a government representative bound the government (i.e. directed a contractor to perform work or deliver a product and the contractor did so) would not even qualify as an "unauthorized commitment" (per the definition) because there were more issues with the action than simply the person binding the government not having the authority to do so, and therefore aren't subject to ratification pursuant to FAR 1.602-3? I guess in that case such issues would have to be resolved by GAO under quantum meruit.

on the other hand, is it possible that FAR 1.602-3 and the definition of "unauthorized commitment" don't speak to process because the process is immaterial for the purposes of ratifying an action? that the only thing that matters in cases where a person without authority bound the government is whether the agreement would be binding (regardless of the process) if a person with authority had done it? I know FAR 1.602-1(b) seems to argue against that, but it doesn't say that if "all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals, have NOT been met, then you don't have a valid contract", rather, it seems to read more like a warning to COs to ensure that they meet "all requirements of law, executive orders, regulations, and all other applicable procedures, including clearances and approvals" before entering into a contract, not necessarily that unless they had done so, a valid contract does not exist.

I don't know, maybe I'm talking myself in circles, but given how FAR 1.602-3(c)(3) only talks about the "resultant contract", being proper had a CO signed it, and not the process, and similarly how the definition of "unauthorized commitment" speaks only to the agreement itself, not the process, maybe it is not about the process, but simply the agreement/contract itself.

1 minute ago, MileHighAcq said:

I guess in that case such issues would have to be resolved by GAO under quantum meruit.

Sorry for being petty, but before I forget, I'm pretty sure the GAO doesn't handle this workload anymore.  If I have my references right, 31 USC 3702 was the basis for the GAO's claims settlement authority discussed in Title 4, Chapter 2 of its "Policy and Procedures Manual for Guidance of Federal Agencies."  That statute has changed, but the FAR reference has not been updated.  For DoD, if I'm reading DoDI 1340.21 correctly, the Defense Office of Hearings and Appeals handles these types of claims.  If the vendor wants to file under FAR Subpart 50.1, as I understand it, for DoD, each of the three services has a "Contract Adjustment Board" that hears requests for extraordinary contractual relief.

13 minutes ago, MileHighAcq said:

I don't know, maybe I'm talking myself in circles...

There it is!

9 minutes ago, Jacques said:

Sorry for being petty, but before I forget, I'm pretty sure the GAO doesn't handle this workload anymore.  If I have my references right, 31 USC 3702 was the basis for the GAO's claims settlement authority discussed in Title 4, Chapter 2 of its "Policy and Procedures Manual for Guidance of Federal Agencies."  That statute has changed, but the FAR reference has not been updated.  For DoD, if I'm reading DoDI 1340.21 correctly, the Defense Office of Hearings and Appeals handles these types of claims.  If the vendor wants to file under FAR Subpart 50.1, as I understand it, for DoD, each of the three services has a "Contract Adjustment Board" that hears requests for extraordinary contractual relief.

good catch. yes, it's now OMB for most cases for civilian agencies.

6 minutes ago, Vern Edwards said:

There it is!

yup, here we are! it's a good place to be - exploring as many aspects of an issue as possible so that when I make a decision or recommend a course of action, I can support it either way.

I’ve been in this field longer than just about anybody here.  Maybe it’s just pure chance I wasn’t exposed to all this but I’ve never seen ratifications be this involved.  My experience also includes seeing ratifications all across the government as a consultant.  The company I worked for did lots of acquisition type support including procurement office reviews and associated files.  Because ratifications are such a sensitive subject, that’s one area where we really focused on whenever we came across them.  

The most common, and to me personally the best way to handle ratifications is first documenting all the details and providing the ratifying official with all the summary information.  This is after reviews by senior procurement officials and legal counsel.  The detailed issues discussed here never seemed to have come up, particularly the scrutiny discussed here about whether the contract would otherwise be authorized.  After ratification, the contract specialist and contracting officer put together a contract file adhering to the FAR as closely as possible.  This including complying with CICA, when applicable, and all the other laws, regulations and policies.  Considering none of the instances I ever encountered when through the scrutiny described here, I just am shaking my head.

I did see one humorous commitment and the file.  A law enforcement agent had drug smugglers  under surveillance.  They loaded and boarded an aircraft.  The agent ran into a charter office and told the pilot to literally “follow that plane.”  The bill was something like $60,000.

12 minutes ago, formerfed said:

I’ve been in this field longer than just about anybody here.  Maybe it’s just pure chance I wasn’t exposed to all this but I’ve never seen ratifications be this involved.  My experience also includes seeing ratifications all across the government as a consultant.  The company I worked for did lots of acquisition type support including procurement office reviews and associated files.  Because ratifications are such a sensitive subject, that’s one area where we really focused on whenever we came across them.  

The most common, and to me personally the best way to handle ratifications is first documenting all the details and providing the ratifying official with all the summary information.  This is after reviews by senior procurement officials and legal counsel.  The detailed issues discussed here never seemed to have come up, particularly the scrutiny discussed here about whether the contract would otherwise be authorized.  After ratification, the contract specialist and contracting officer put together a contract file adhering to the FAR as closely as possible.  This including complying with CICA, when applicable, and all the other laws, regulations and policies.  Considering none of the instances I ever encountered when through the scrutiny described here, I just am shaking my head.

I did see one humorous commitment and the file.  A law enforcement agent had drug smugglers  under surveillance.  They loaded and boarded an aircraft.  The agent ran into a charter office and told the pilot to literally “follow that plane.”  The bill was something like $60,000.

yeah, this one is on me. as I explained in one of my posts, I was just reviewing a ratification file and the writeup under FAR 1.602-3(c)(3) struck me as being particularly non-sensical, and it got me thinking and wondering what that statement really meant. I've reviewed dozens of ratifications before, and it never occurred to me before to question that because the rationale provided made sense on some level.

I'm just here to learn, in my never-ending quixotic quest to make some kind of sense of government regulations related to acquisitions.

On 5/22/2023 at 4:58 AM, Jacques said:

So, FAR 1.602-3(c)(3) says, "The authority in paragraph (b)(2) of this subsection may be exercised only when...[t]he resulting contract would otherwise have been proper if made by an appropriate contracting officer."  I think the use of the word, "resulting" here is meaningful.  To me, the focus of what (c)(3) is asking ratifying officials to consider is NOT whether FAR procedures preceding the unauthorized commitment were followed, but whether the actual content of the agreement is proper.

Are you distinguishing the resulting ‘contract’ from the unauthorized commitment or treating the terms synonymously as used in that subsection? (FAR 1.602-3(c)(2) and (c)(3) seem related (really 1-7 are read together)).

 Reminder: FAR 2.101 defines ‘contract’