MileHighAcq

Thanks for that. I've only heard, never read. I have some Cibinic and Nash books (source selection and cost reimbursement contracting), but not the two you mentioned. I'll have to see if my HCA will splurge for it, though probably not at this point since we're mostly remote, so it wouldn't be "shared" by the entire office.

okay, I'll bite. so what happens when a contracting officer signs a contract but did not fully comply with a law regarding procedure or contract content? do you not have a legally binding contract? I suppose you can say "no, and you need to remedy it by complying with the requirements with regard to procedures and contract content after the fact". but suppose you cannot remedy every aspect of it (e.g., you award to a large business when the requirement was automatically set aside for SBs and there are SBs who can perform the work, so you can't dissolve the set-aside after the fact). do you then not have a legally binding contract? do you terminate the contract / cancel the PO and start over? what if no one discovers that the contract is isn't legally binding and the contractor completes the work and you close out the contract? does the contract just go down in the history of the agency as an illegal contract? I don't know the answers, I just know that from a practical standpoint, people are going to miss things that can't be remedied afterwards. I don't favor such an absolutist approach.

That's a tremendous compliment! I know, I slightly ignored the second paragraph of your post (You cannot ratify a commitment that, had it been made by a contracting officer with requisite authority to make that kind of commitment, would have been illegal because the contracting officer did not comply with a law regarding procedure or contract content.) because it was contrary to my desired interpretation.

in that case (if it's just an authority issue) all you need to do is have someone with authority ratify the "agreement" created by the unauthorized commitment and, bam, you have a resultant contract that's otherwise appropriate! forget any compliance issues relating to procedure and contract content.

if I may, the terms are not synonymous because of a technicality - which is that a contract is signed by a person with authority to do so, but an unauthorized commitment is not. that's why an "unauthorized commitment" is defined as an "agreement" rather than a contract, and the distinction draws is "solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government." however, the similarity is that the focus in both cases is on the end result - the "resulting contract" and the "agreement", not on the process.

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.

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.

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

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.

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.

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?

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.

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?

that's a pretty strict standard! if something is open to the discretion of contracting officials, then it wouldn't be a "minor deviation" from regulatory requirements. it seems to me that the GAO is opening a the door a bit that an action that didn't strictly follow regulatory requirements may still be ratifiable as long as the deviations from regulations can be considered minor. no? agree. what I should have said (and meant in my mind) was that it broadens the focus to include the process as well, not just the resulting contract. my bad.

which then takes the focus off the "resulting contract" and on to the process itself. did the process itself follow appropriate laws and regulations. and then we need to distinguish between which ones are deal breakers and which ones can be remedied or ignored, because as GAO said, we're not looking for "otherwise perfect".