1 hour ago, Vern Edwards said:

Contracting officers are expected to solve problems, not be a problem.

One of the functions of the company I worked for was reviewing the contracting function of agencies.  Several engagements were at the request of senior management (two Deputy Secretaries, several Assistant Secretaries, and lots of CFOs).  We conducted interviews and surveys of management including program offices.  Like it or not, this theme in the above quote or some variation of it was almost always mentioned.

In fairness, our interviews often showed a lack of understanding of contract rules by technical/program personnel.  They don’t realize how tedious and cumbersome the process and viewed it as a rule based maze which they fail to comprehend.  But in those cases where this theme wasn’t mentioned, we dug into reasons and found the surveyed personnel either received training from the contracting staff or had favorable working relationships in the past with contracting personnel that resulted in collaborative experiences.

The unfortunate side though was the very common expression that contracting officers are a hurdle that needs to be overcome to get their mission needs met.  Those contracting personnel were viewed as compliance focused and totally risk adverse in their actions with little or no regard to the program mission.  I can imagine the reaction from those people faced with situations described in this example of possible ratifications when most would say they aren’t.  

An old boss once told me that I wanted to be the guy they come to when they're in trouble, not the guy they steer clear of.

1 hour ago, formerfed said:

1 hour ago, formerfed said:

In fairness, our interviews often showed a lack of understanding of contract rules by technical/program personnel.

Contracting officers are expected to solve problems, not be a problem.

I can identify with formerfed's comments but with a twist.  I once worked for an activity that utilized the Intergovernmental Personnel Act so that people from state and local government agencies, universities and some non-profits would come for assignments with the agency.  Some of them acted as program/project managers.  Getting them to understand the government procurement system and the roles and responsibilities of the various players in that system was quite an undertaking.  I remember a guy I worked with, who was quite competent, being told by one of these detailees that he was "nothing but a pimple on the posterior of progress."  

@Vern Edwards Your old bosses suggestion is a great thing for all of us to keep in mind.  That’s also the kind of boss everyone should have

20 minutes ago, Retreadfed said:

  I remember a guy I worked with, who was quite competent, being told by one of these detailees that he was "nothing but a pimple on the posterior of progress."  

😱

A few thoughts and then a formal reply.

First I have asked Bob to delete the entirety of this thread based on the overall terms of use.  It will be up to him.   I have done so as it is clear to me in my read that the thread has been hijacked to further inuendo by some regarding what some believe to be my abilities to reason.   As such it detracts from the intent of my purpose in starting the thread.

I just want to asure the Forum that I have no ill intent with regard to anything others post until it becomes by fact or subtle intention, personal.  I will simply respond same in defense.

In truth I spend a fair amount of time researching and contemplating my responses especially when the discussion becomes detailed.  If my posts do not meet certain individuals personal standards so be it, just be aware that I do the best I can and will continue to  be a valued participant in Forum.   My further participation I have, as well, left up to Bob.   Now to the discussion at hand....

16 hours ago, Vern Edwards said:

My answers:

1. No. FAR 1.602.3(b)(5) states:

2. The contract is CPFF. Pending ratification I would have to reject any invoice for costs incurred for the performance of Phase II as unallowable. Moreover, what would happen if if the ratification were to be denied? The contract might have to be terminated. Either of those actions would be the basis for a contractor claim.

FAR 33.204, Policy, states, in pertinent part:

Emphasis added.

In light of the circumstances, FAR 1.602-3(b)(5) and FAR 33.204, and in response to the contractor's agreement not to act and incur costs based on unauthorized guidance again, I would issue the authorization to proceed with Phase II, and we would put the matter behind us and get on with the work within 24 hours of my return from official travel. I would buy the COR a beer.

Contracting officers are expected to solve problems, not be a problem.

Vern created a scenerio where the facts were canned to fit into the answers.    While his overall approach is thought provoking I have the following response.

Part of the premise offered is that the ratification would not be approved.  I do not believe nonapproval to be the case.   My view is based on experience where over my 39 year career as a CO in processing ratification requests I had zero not ratifed when I as the CO recommended ratification should occur.  In fact one ratification was six figures, involved myself and required the signature approval of the head of agency. 

I would offer that the ratification in the scenerio would be approved and is exactly why the cure process of ratification is in place.  As I have already stated in advance of any issue raised by a contractor so as to avoid any unnecessary controversy.  Post knowledge but pre-claim, as the scenerio states,  ratification would work the same - a cure.  And such a cure would be solved at the level of the CO wherein the CO would be addressing the matter as provided in regulation.

If I were the CO in such as case as described I would communicate to the contractor stating that the approval was not proper, a reminder of who has actual authority, let the contractor know the ratification process was being followed and the CO was recommending ratification and in doing so I would advise that if invoiced the amounts would not be paid until the action was ratified.   It is true that there is a possiblity of non-ratification and if that occurred then the contractor has the remedy of claim and I would go from there.  My communication would be open, transparent and matter of fact.

As to a claim it is well settled that if a claim results from an unauthorized action then the world of settlement becomes much bigger such as possible constructive change  and beyond.  Also it is well settled that if a constructive change, the matter could amount to an unauthorized commitment that would need ratification at the most, and at the least higher level approval, before settling.

Bottomline an attempt has been made to justify approval by an individual that does not have actual authority to do so.   In the world of contracting I get that nothing is 100% and a route taken depends on the facts.  Yet, my research suggests that in the world of Federal contracting nothing and I mean nothing trumps actual authority, unless a court of proper jurisdication decides otherwise based on facts.  Until such occurs the regulation for ratification is provided as a cure to avoid as best and factually possible the court route.

 A CO following the cure process of ratification is not a problem he/she is problem solver.  It is the reason for the regulatory process.   In my career I proved it and was in fact the person that folks would come to as not being considered the pimple on someone's ass.

 

@C Culham Thank you, Carl.

However, you made a false statement about what I said:

2 hours ago, C Culham said:

Part of the premise offered is that the ratification would not be approved. 

I did not premise that the ratification would not be approved. Rather, I considered the possibility that it might not be approved. 

19 hours ago, Vern Edwards said:

Moreover, what would happen if if the ratification were to be denied?

I took that possibility and its possible consequences into consideration in determining whether the policy in FAR 1.602-3(b)(5) applied to the case, which it clearly does since the entire matter is one of contract administration, not contract formation. However, you did not address the policy in FAR 1.602-3(b)(5) in any of your posts that I recall, Surprising, since you are otherwise such a stickler for the rules in this regard.

You said:

2 hours ago, C Culham said:

As to a claim it is well settled that if a claim results from an unauthorized action then the world of settlement becomes much bigger such as possible constructive change  and beyond.  Also it is well settled that if a constructive change, the matter could amount to an unauthorized commitment that would need ratification at the most, and at the least higher level approval, before settling.

You provide no citation in support of your assertion of what you say is "well settled," but it's irrelevant, a distraction, a red herring, because my scenario did not involve a change of any kind, constructive or otherwise. (By the way, the constructive change would also have to be a cardinal change, outside the bounds of the existing contract, in order to argue against applicability of FAR 1.602-3(b)(5).)

You have made your point. Several times. You would seek a ratification. Four experienced professionals, all of whom you have long known via Wifcon Forum𑁋Joel Hoffman, formerfed, Retreadfed, and I𑁋have said we would not pursue a ratification and have said why we would not, for various reasons. I think all four of us have been chiefs of contracting offices or higher at various points in our careers. But, in my experience. once you are committed to a position you will not change your mind. Thus, we are at loggerheads.

You have answered my questions and so have I. Since there is no chance of reaching agreement between you and the four of us, I think we have to let other Wifcon Forum members decide on their own what course they would take.

I consider your request that Bob delete this thread to be an act of intellectual cowardice. I have nothing more to say, and I see no point in refuting another one of your arguments.

15 minutes ago, Vern Edwards said:

You provide no citation in support of your assertion of what you say is "well settled," but it's irrelevant, a distraction

It is not a red herring.  I invite you to provide citation that disproves my assertion.   I will read whatever you offer as unlike you I won't simply say its too long or whatever.

17 minutes ago, Vern Edwards said:

FAR 1.602-3(b)(5)

Yes I did.

18 minutes ago, Vern Edwards said:

chiefs of contracting offices or higher at various points in our careers.

So you are saying that as a COCO you would not ratify the event in your scenerio?  Interesting.

 

19 minutes ago, Vern Edwards said:

once you are committed to a position you will not change your mind

The pendulum swings both ways and always will.

21 minutes ago, Vern Edwards said:

You have answered my questions and so have I.

No sir you have not at least by my read.   No where in any of your posts to this thread have you answered the questions that were in my original post that I since deleted.  And is the very reason I deleted it because if I posed a question as to why you would not answer you would revert to you usual by saying too long, don't have to answer etc.  Rather like a part of the four you revert to personal inuendo as defense rather than providing response and facts.

Agreement is only if I see it your way.  I have never demanded you see it my way, I just hoped you would answer legit questions but you won't, oh well, it goes on as your usual.

Yep, case closed and I hope you agree Bob should delete the thread unless you agree I am a pimple on someones ass!

 

@C Culham I do not think you are pimple on anyone's a--, and I do not think that comment, made by someone else, was directed at you. I do not want the thread deleted. You started it, and you should live with what you started.

I like and respect you. I know you to be a good guy. We just think differently, have different operational philosophies, and sometimes rub each other the wrong way. I have praised you in the past, as you damned well know.

But I come from the military program and project contracting environment, which I loved, and in which relationships among program or project personnel are crucial to mission success. It's not like working in a central contracting office, where COs might not even know the people they are supporting, much less see them and sit in meetings with them every day. The program and project world is major league, not small ball. You apparently come from a different contracting world. In my program and project world, when a problem arose I wanted the boss to ask: Where's Vern? And they did. Problems were my specialty.

I would never submit a program COR or project COR to a ratification because of a contract administration misstep if there were any way that I could avoid it. My superiors and colleagues in the program, project, and contracts offices would not have appreciated such a course, and would distrust me afterward, and for good reason. Promotions and careers could be at stake. My philosophy gave me many high-ranking allies, and took me from GS-05 to GS-15 in the minimum time the law allowed, ahead of my peers. And now you can find references to my articles in court decisions.

FAR 1.602-3(b)(5) was included in the ratification rules for a reason: To treat such unauthorized acts during contract performance as matters to be handled by the CO, and as CO I would follow the policy and settle such matters at my level whenever possible, as the policy says should be done. 

I think any CO who would refer the matter described in my scenario for ratification would be either incompetent or an utter jackass, not a mere pimple.

 

19 minutes ago, Vern Edwards said:

 I do not think you are pimple on anyone's a--, and I do not think that comment, made by someone else, was directed at you.

I made the statement and it was not directed at Carl or anyone else at this forum.  It was merely an anecdote regarding the problem that sometimes arises in dealing with personnel outside the contracting profession, in that case Intergovernmental Personnel Act detailees.

@Vern Edwards  We might be getting somewhere but let's see.

25 minutes ago, Vern Edwards said:

I do not think you are pimple on anyone's a--, and I do not think that comment, made by someone else, was directed at you.

So as you state four commenters in the thread, so who of the four was it directed at in your view?

25 minutes ago, Vern Edwards said:

I think any CO who would refer the matter described in my scenario for ratification would be either incompetent or an utter jackass, not a mere pimple.

Oh wait now I get it I have graduated so someting even better.

25 minutes ago, Vern Edwards said:

I have praised you in the past, as you damned well know.

And you also unequivcally and without apology have stated in the past that your mission is to discredit me have you not?  Or do I need to resurrect the post that did so?  Or better yet what is the intent of your closing comment.

Bluntly Vern, your pandering is not worth it, but thanks anyway.

 

On 11/4/2024 at 9:59 AM, Vern Edwards said:

The contractor had to commence performance of Phase I within 24 hours after contract award. Upon completion of Phase I the contractor had to notify the COR and present the Phase I results. The contract expressly states that the contractor may not commence performance of Phase II until expressly authorized to so by the CO in writing. The contract also expressly states that only the CO may authorize commencement of Phase II. Phase II is not a Government option. If Phase I is completed satisfactorily the CO must authorize the contractor to proceed or terminate the contract for convenience.

Upon being presented with the results of Phase I the COR will review them and notify the CO whether they merit proceeding with Phase II. If the results do not merit proceeding the CO may either (1) direct the contractor in writing to take specified actions and present new Phase I results to the COR within a specified period of time, or (2) terminate the contract for convenience. 

Facts. Upon the early completion of Phase I the contractor presented the results to the COR. The COR found them to merit proceeding and sent the CO a memo report to that effect. However, the CO was on official travel status and could not read the memo or send a written authorization to proceed with Phase II immediately.

In this case, it was the COR’s role and responsibility to review the results of Phase I and notify the KO whether the results merit proceeding with Phase II .

“ The COR found them to merit proceeding and sent the CO a memo report to that effect.”

The KO had the contractual responsibility to act on the results and merit determination in a reasonably responsive timeframe [it would seem reasonable to assume this is to efficiently maintain progress and  and avoid time and cost impacts of delaying the action]:

“If Phase I is completed satisfactorily the CO must authorize the contractor to proceed or terminate the contract for convenience.”

In the scenario, the KO was unavailable and unreachable to perform her Contractual responsibility, which [likely] put the Government at risk for additional costs and possible disruption and time impacts.

In my option, the COR SAVED the Government additional costs that would have accrued and additional time that would have been incurred ,waiting for the KO to return to duty and [“must”] authorize the contractor to proceed.

Both the contractor and COR met their contractual responsibilities…

The COR acted to protect the Government’s interests and work with the contractor to facilitate efficient progress.

Phase II was NOT an option in the contract, it was a requirement, unless the KO would have decided to TFC the [“…fully-funded cost-plus-fixed-fee R&D contract for the conduct of a project. The project was to be conducted in two phases under a single contract lime item.”]

 

On 11/6/2024 at 9:47 PM, C Culham said:

 

So as you state four commenters in the thread, so who of the four was it directed at in your view?

For what it’s worth, I don’t believe anyone thinks that comment was directed at you or any other forum participant. Maybe read it again.

On 11/6/2024 at 6:46 AM, Retreadfed said:

I made the statement and it was not directed at Carl or anyone else at this forum.  It was merely an anecdote regarding the problem that sometimes arises in dealing with personnel outside the contracting profession, in that case Intergovernmental Personnel Act detailees.

 

1 hour ago, Jamaal Valentine said:

For what it’s worth, I don’t believe anyone thinks that comment was directed at you or any other forum participant. Maybe read it again.

I take Retreadfed at his word and appreciate your view.   As it goes however I have a circle that views and participates in Forum and by my discussion it was confused as applying to me.

I am good and moving forward.  This one is a done deal.