C Culham

At one time I too was a procurement analyst. Here you go.... CO Warrant to $10 million CO awards a purchase ordered valued at $150K to a current Federal employee unknowingly. Discovered after almost all work complete. Payment to be made in one payment. Contractor/individual was performing the work. The contract was deemed to be an unauthorized commitment (FAR 1.603-2(a)). Agreement was ratified by the head of agency (FAR 3.6).

No sir...does not a CO decide issues pre-contract and post contract. Additionally I fear discussion of Christian and other legal doctrines are misplaced. The CO should make a reasonable decision at the lowest level. If the contractor does not like it the take it to tribunal appropriate for a "legal" decision.

Your question is a good one in my estimation. Discretion comes in when the decision is made to not ratify does it not? Consider the once under $2500 service that extends to $3,000 or Option not extended that would have been anyway. And considering your immediate post afterwards why fiscal why not a CO (inclusive of the HCA's delegate)? Afterall all conflicts are to be resolved at the lowest level (my words) are they not? Even though not ratified I still see it in the lane of the guiding principles of the FAR, was it a contract or not? In the end it all depends on every single fact of the instant unauthorized commitment but if all the other considerations of FAR 1.602-3(c) except (3) why wouldn't the agency exercise their discretion provided by the guiding principles of the FAR with regard to whether a contractor should be paid or not? References FAR 1.602-3(4) along with FAR 33.102(b) or 1.602-3(5) along with FAR 33.204.

I know this is Beginners but I but as I I have followed this thread I do have to say that your confusion exists because in some cases the "computer" has not been designed with regard to the "Red Book". Your confusion is not necessarily your fault it is the fault of others (fiscal) who designed systems to meet their needs.

Hmmm...you are not required to use the IDIQ, right? Why not a new procurement and let the contractor compete their price?

Sorry was away for a few days. Thank you. Just because the discussion continues I do find it interesting that there seems a minor disconnect between the definition of unauthorized commitment in FAR 1.602-3 and what it then takes for ratification at least by my read. So what is an unauthorized commitment something done by an unauthorized person or something done by an unauthorized person who "otherwise" did not follow procedure? Well I stopped researching as other stuff has taken over but I do wonder if somehow the quantum meruit ideal is somehow wrapped up in GAO Policy and Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 2 (FAR 1.602-3(d)) and if not why GAO would not defer to it as policy to resolve? I would think that rather than the HCA (or their delegated authority) doing something like this - The request to ratify the unauthorized commitment by John Doe for your services of $2501 has been denied. Your recourse now Contractor X is to seek resolution via GAO and GAO Policy and Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 2. The HCA/delegated authority might want to consider this - FAR 33.102 (b) If, in connection with a protest, the head of an agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation, the head of the agency may- (1) Take any action that could have been recommended by the Comptroller General had the protest been filed with the Government Accountability Office;

I would be interested in what you do or in other words an example of a ratification that you feel occurred that did not meet the "otherwise"?

Understood. The OP is probably a drummed up example. First responders? Many are contracted services especially in the EMT/ambulance world. Heck even individuals might be "contracted" EMT's and firemen. Yep I am stretching but it seems it might be reasonable to consider the state, local and foreign the commercial marketplace these days. The question always comes up, what into todays world is not a commercial item and further not a COTS if it sold "as is" to a bunch of different entities. After all what do you pick door number 1, 2, or 3? https://www.pcmag.com/encyclopedia/term/commercial-market#:~:text=(1) The sale of products,to manufacturers%2C distributors or OEMs. Further rhetorical thoughts that do not need response.

Point made, now does everything you have listed apply to a widget? Likewise are there further exceptions that might apply, say with regard to 52.222-54 if we had more detail? I would suggest you have given food for thought to the "Beginner" but as usual the devil is in the details much like the questions I raised. I did not tell the OP to not worry about COTS but it seems you are telling the OP via your posts to not consider the widget a commercial product?????

You have gotten comments to consider. Here is mine, why worry about if it is COTS or not? COTS is a subset of commercial item. Both can therefore be purchased using FAR Part 12. The only difference is that COTS are not typically subject to modification but a commercial product can be and still be a commercial product. With my question posed here are my additional thoughts The standard of GAO and the courts is that a determination of a commercial product is at the discretion of the agency and such a determination will not be disturbed unless the GAO or courts find the determination unreasonable. FAR 2.101 FAR definition of commercial product includes (emphasis added) (6) A nondevelopmental item, if the procuring agency determines the product was developed exclusively at private expense and sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments. At the same FAR 2.101 Non-developmental item is defined as (1) Any previously developed item of supply used exclusively for governmental purposes by a Federal agency, a State or local government, or a foreign government with which the United States has a mutual defense cooperation agreement; By your post you have indicated the item has been sold to not only state and local governments but foreign governments as well. Were such sales on a competitive basis? And was the widget developed exclusively at private expense? And when sold to foreign governments do those foreign governments have mutual defense agreements with the United States? For the latter many do. If yes to all these questions then it would seem the widget is a commercial product as it meets (6) of the commercial product definition. So in a reasonable view the widget could be a commercial product. And if so why worry about whether it is COTS?

And then there is this - https://www.fai.gov/tools/Buy-American-and-Trade-Agreements-Decision-Tools

Yep as already indicated lots of considerations. And references too that may lead to the development of the checklist that you find most suitable. Just to help I did a quick internet search. Maybe these will help you in your quest or at least start you on your effort to develop your own - https://media.defense.gov/2022/Mar/08/2002952280/-1/-1/0/CG_4788.PDF https://www.publications.usace.army.mil/Portals/76/Eng_Form_6146_2019Jun.pdf?ver=2019-06-24-144102-160 https://oamp.od.nih.gov/sites/default/files/DAPEDocs/HHSChecklist/2009_05_checklist_negotiated_1_presolicitation_to_award.pdf https://www.transportation.gov/sites/dot.dev/files/docs/APL_contract_checklist.pdf And many, many more!

Along with CICA? Special simplified procedures for needs under the SAT (single source FAR 13.106-1(b)). Intent of CICA was to have special simplified procedures for those needs not exceeding the stated limit ($5,000,000) for commercial items (41 USC 253(g) but essentially in crept via regulation (FAR 13.5) the requirements similar to that of FAR part 6 .

Is the entity a small business? If so, go here and find a PTAC near you. They offer one on one assistance. Association of Procurement Technical Assistance Centers https://www.aptac-us.org/

Honestly it seems it would be very time consuming to track and it also seems the devil is in the details. By example this quote does mention $75M. From the reference and link in the table for FAR Case 2004-033 where you need to read the whole of the Fed Reg in the link. "13.501 [Amended] ■ 22. Amend section 13.501 by removing from paragraph (a)(2)(i) ‘‘$500,000’’ and adding ‘‘$550,000’’ in its place; removing from paragraph (a)(2)(ii) ‘‘$500,000’’ and ‘‘$10,000,000’’ and adding ‘‘$550,000’’ and ‘‘$11.5 million’’; respectively, in their place; removing from paragraph (a)(2)(iii) ‘‘10,000,000’’, ‘‘50,000,000’’, and ‘‘75,000,000’’ and adding ‘‘11.5 million’’, ‘‘57 million’’, and ‘‘78.5 million’’, respectively, in their place; and removing from paragraph (a)(2)(iv) ‘‘50,000,000’’ and ‘‘75,000,000’’ and adding ‘‘57 million’’, and ‘‘78.5 million’’, in its place." All said I depart from the cut and paste as I think the amounts are with intent, have been adjusted by the allowance of regulation threshold adjustments due to inflation, possibly other legislation and approvals above the $15M are allowed for contingency ops because legislation and regs say so. Seems too simple but that is why! Yet it is confusing at the same time!