Vern Edwards

Good info, Georgi!

The confusion about proposal/offer is the product of how the concept of "negotiated procurement" developed in government contracting after World War II and the Korean War emergency. I'll describe it one day for a Wifcon article. There were two factors. First, no one knew what "negotiated procurement" meant in practical terms other than that it was any kind of procurement other than "formal advertising" (now "sealed bidding"). Second, was the concept of "proposal" which emerged from weapon design competitions. It's an interesting story, but too hard for me to write now due to my eye problems.

No. But somebody wrote about that more than 20 years ago, making that very point.

Yes.

Yes.

@LeighHar Wait a minute! What are you pricing? A new subcontract or a subcontract modification? Does your contract with the government include the clause at FAR 52.215-12 or -13? If so, is the sub's proposed price greater than the TINA dollar threshold when you signed your government contract? What I want to know is whether your government contract requires you to obtain certified cost or pricing data from the sub in this instance. I am unable to determine that from your posts. If you want a further response, please answer my three questions.

Why do agencies make GWACs? Why is NIH making a GWAC for IT support services?

No violation of the policy, since the CO did not do so knowingly. In any case, see FAR 3.602.

See STG International, Inc. v. U.S., COFC Nos. 23-47C; 23-175C, May 24, 2023. I have long argued that there is a distinction between offers and proposals. Offers are sets of promises to act or refrain from acting in a specified way, so made as to communicate a willingness to enter into a bargain. Proposals, despite the stupid definition in FAR 2.101, are packages that presumably contain (1) offers and (2) mere information. The COFC protest decision demonstrates that fundamental idea in a dramatic way. A link to that decision was posted on the home page today.

See Cibinic and Nash's discussion of Contracts Varying from Statutory or Regulatory Requirements, Unauthorized Variances, in Formation, pp. 72 - 75: When I entered the contracting field, Formation of Government Contracts and Administration of Government Contracts were foundational textbooks. You would see them on the bookshelves of many COs. Not today. Most government offices won't buy it for their trainees, and most government personnel won't spend their own money for it. I will go so far as to say that if you are a contracting "professional" and don't own and read those books, then you are engaged in a battle of wits, and you are unarmed. Invest in your career. Then, get with a few of your colleagues and form a reading and discussion circle.

Maybe yes, maybe no. It depends on what law the CO did not comply with. See Cibinic and Nash.

@MileHighAcq I'm sorry, but I think you're being willfully uncomprehending. A poor man's Joseph Heller.

Ratification applies to authority issues. It does not apply to compliance issues regarding procedure or contract content. 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. It's very, very simple. Read Cibinic and Nash, and think. You ratify unauthorized commitments, not improperly made and written commitments. It's just someone who has authority approving after the fact an act of someone who did not.

There it is!

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

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

Well, it's yet another indication that (1) the Federal Acquisition Streamlining Act of 1994 did not streamline anything, that (2) multi-agency multiple-award IDIQ contracts are a bonanza for the legal profession but are otherwise time-consuming and wasteful, and that (3) the government and political system created by the founders is foundering and nothing can save it from itself. It is proof that we are living in the age of incompetent government. There is no chance of meaningful "reform."

😂 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."

See Poly-Pacific Technologies, Inc., Comp. Gen. Dec. B-296029, 2005 CPD ¶ 105.

@Sam101 Who, besides you, cares what it means to you? See 31 USC § 1501, Documentary evidence requirement for Government obligations (a) An amount shall be recorded as an obligation of the United States Government only when supported by documentary evidence of— (1) a binding agreement between an agency and another person (including an agency) that is— (A) in writing, in a way and form, and for a purpose authorized by law; and (B) executed before the end of the period of availability for obligation of the appropriation or fund used for specific goods to be delivered, real property to be bought or leased, or work or service to be provided; (2) a loan agreement showing the amount and terms of repayment; (3) an order required by law to be placed with an agency; (4) an order issued under a law authorizing purchases without advertising— (A) when necessary because of a public exigency; (B) for perishable subsistence supplies; or (C) within specific monetary limits; (5) a grant or subsidy payable— (A) from appropriations made for payment of, or contributions to, amounts required to be paid in specific amounts fixed by law or under formulas prescribed by law; (B) under an agreement authorized by law; or (C) under plans approved consistent with and authorized by law; (6) a liability that may result from pending litigation; (7) employment or services of persons or expenses of travel under law; (8) services provided by public utilities; or (9) other legal liability of the Government against an available appropriation or fund. (b) A statement of obligations provided to Congress or a committee of Congress by an agency shall include only those amounts that are obligations consistent with subsection (a) of this section. Now go do some reading.

@Sam101 Sigh. See Principles of Federal Appropriations Law (GAO Read Book), Vol. II, Ch. 7, Obligation of Appropriations, pp. 7-12 to 7-13: Now, I know that quote will prompt some questions. That's why I posted it. But don't ask them. If you do, I won't answer them. Get off Wifcon and, for answers, hit the books.

No. Contracting process, contract form, and contract content all matter.

The decision cited and quoted by Jacques indicates the distinction: Emphasis added. In my view, failure to execute a procedure required by law or regulation and concerning which no discretion is afforded to contracting officials, would preclude ratification.

I state the test this way: 1.602-3(c)(3): "The resulting contract would otherwise have been proper if made by an appropriate contracting officer[.]" In other words, would it have been legal for an appropriate contracting officer to have made the same contract in the same way? In other words, ratification may be done only if the only defect in the contracting process was lack of authority. Ratification cures lack of authority, but not other legal defects. A ratifying official cannot waive illegality.

There is no blanket answer that covers all processes. The processes you listed are not all alike. Failure to carry out a purely administrative process like obtaining a funded PR or conducting and conducting acquisition planning should preclude ratification. But I do not think ratification can be based on after-the-fact conduct of processes like determining price reasonableness, determining contractor responsibility, publicizing at the GPE, making a set-aside decision, and preparing and obtaining a J&A. Those are statutory and regulatory requirements that must be met before an award can be made. To ratify it would be to authorize a commitment that was made in violation of the law. A ratifying official has no authority to do that. See FAR 1.602-1(c)(3). What can be done is to refuse to ratify and then conduct those processes and make an award in accordance with the law. If the company to whom the unauthorized commitment was made wins the contract, it can use any work it did pursuant to the unauthorized commitment If it does not win it can seek compensation on a quantum meruit basis or accept it loss and move on.