Vern Edwards

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.

14 hours ago, MileHighAcq said:

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?

See Cibinic and Nash's discussion of Contracts Varying from Statutory or Regulatory Requirements, Unauthorized Variances, in Formation, pp. 72 - 75:

Quote

When unauthorized procedures or terms and conditions are used, a variety of consequences may follow. In some cases, the government may be permitted to avoid the contract. In other instances, the contract may be rewritten to add a mandatory clause or exclude a prohibited clause. Finally, the contractor may be able to require the government to abide by mandatory procedures.

The most drastic consequence of a contract made in violation of a statute or regulation with the force and effect of law is that the government has the right to avoid the contract. Such contracts have been described as "void ab initio"... "invalid"... or "illegal"...

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.

45 minutes ago, MileHighAcq said:

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?

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

5 minutes ago, MileHighAcq said:

forget any compliance issues relating to procedure and contract content.

@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.

13 minutes ago, MileHighAcq said:

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

There it is!

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

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.

1 hour ago, bob7947 said:

I'm astonished that only formerfed said anything about this procurement.

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."

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."

23 hours ago, Sil said:

The optional CLINs were posted with the RFP, KTRs were asked to propose on those CLINs, those CLINs were evaluated for award, this could have possibly changed the competition? So can we just remove them?

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

12 hours ago, Sam101 said:

To me recording an obligation means obligating funds in a computer...

@Sam101 Who, besides you, cares what it means to you?

See 31 USC § 1501, Documentary evidence requirement for Government obligations

2 hours ago, Sam101 said:

Yes, the OF347 not having a block for the vendor countersignature is what is causing me to obligate funds without knowing if the contractor will even accept the order.

41 minutes ago, Sam101 said:

Because even if the contractor does not provide written acceptance they can still begin performing, right? So how can they begin performing if there are no funds obligated?

@Sam101

Sigh.

See Principles of Federal Appropriations Law (GAO Read Book), Vol. II, Ch. 7, Obligation of Appropriations, pp. 7-12 to 7-13:

Quote

A mere request for additional supplies under a purchase order with no indication of acceptance of the request does not create a recordable obligation. 39 Comp. Gen. 829 (1960). Similarly, a work order or purchase order may be recorded as an obligation only where it constitutes a binding agreement for specific work or services. 34 Comp. Gen. 459 (1955)..

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.

20 minutes ago, MileHighAcq said:

which then takes the focus off the "resulting contract" and on to the process itself.

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

23 minutes ago, MileHighAcq said:

Reminds me of the earlier discussion about "substantive" vs "procedural" laws. I agree with you - there is a difference in not adhering to some fundamental laws vs not adhering to more procedural regulations like conducting and documenting market research and acquisition planning, solicitation and evaluation, etc.

The decision cited and quoted by Jacques indicates the distinction:

Quote

In our view ‘otherwise proper’ does not necessarily connote ‘otherwise perfect.’ Where the ratification is of a contract made by an unauthorized, and presumably inexperienced, individual, procedural defects (in addition to the lack of authority) are not unlikely. Therefore, if § 1–1.405 is to have any practical application, ratification of an unauthorized contract which also contains other minor deviations must be considered within the scope of agency discretion. On the other hand, if the defects are such that the contract could not have been properly made at the time, § 1–1.405 ratification is inappropriate.

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.

13 minutes ago, Jacques said:

The test is not whether the contract WAS properly made at the time of the unauthorized commitment, the question is whether it could have been properly made had proper procedures been followed.
 

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.

27 minutes ago, MileHighAcq said:

I mean things like obtaining a funded PR, conducting and documenting market research and acquisition planning, completing the small business screening form (i.e. set-aside considerations), publicizing to the GPE, soliciting, evaluating, determining price reasonableness, determining contractor responsibility...

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.

@MileHighAcq 

43 minutes ago, MileHighAcq said:

the process of putting the contract in place

Give us some examples of such a "process." I say that an unauthorized commitment made on a sole source basis without first preparing and obtaining a J&A cannot be ratified. Is preparing and obtaining a J&A such a "process"?

Could the agency refuse to ratify such a commitment, but then prepare a J&A and award a contract properly to the same company? Yes. But that would not be a ratification of the unauthorized commitment. It would be a proper award.

Do you understand?

Confusion reigns.

There is no reason to be confused about FAR 1.602-3(c)(3).

There are two problems:

1. lack of authority to contract; and
2. noncompliance with law and regulation.

Cibinic and Nash discuss these matters in Formation of Government Contracts, 4th ed., Chapter 1., Basic principles of Federal Procurement. They discuss the authority problem in Section III, Authority of Government and Contractor Personnel, Subsection A, Government Personnel. They discuss the noncompliance problem in Chapter 1, Section II, Contracting Powers, Subsection C, Contracts Varying from Statutory or Regulatory Requirements.

Ratification (see the definition at FAR 1.602-3(a)) can solve the first problem. It cannot solve the second, which explains FAR 1.602-3(c)(3). The authority to contract does not include the authority to enter into a contract in violation of law or regulation. See FAR 1.602-1. That includes ratifying officials. They cannot ratify an unauthorized commitment that, in addition to being made by a person without authority, did not conform to law or regulation. See FAR 1.602-3(c)(2). See also Cibinic and Nash, pages 102-103, under the heading, Authority to Perform or Authorize Acts Being  Ratified: "[I]legal actions cannot be ratified because officials lack the authority to enter into illegal agreements."

As for quantum meruit recovery, that's too complicated a matter to address here, but there is a huge literature about it.

@Sam101

I'm sorry that you face so many administrative difficulties.

I wish you well.

Vern

Your purchase order (OF347) was an offer to buy. They rejected your offer. So cancel it, and make a new one on a new OF347.

Mr. Assad was interviewed on "60 Minutes" on Sunday, May 21, and stated that contractors are "gouging" DOD.

See "Weapons contractors hitting Department of Defense with inflated prices for planes, submarines, missiles"

https://www.cbsnews.com/news/weapons-contractors-price-gouging-pentagon-60-minutes-transcript-2023-05-21/

A transcript of the program is available.

60 Minutes also interviewed a former contracting officer and auditor. They also interviewed a retired Air Force lieutenant general who managed the F-35 program.

The program describes the cuts to the acquisition workforce, which Shay said were disastrous.

So now we have substantive law, procedural law, and foundational law?

How does this terminology help us to understand ratification?

@Jacques @MileHighAcq

Please explain what you mean by "substantive law." Substantive law versus what other kind? Why not just "law"?

I have long wondered how people ever got the guts to venture far from shore in sailing vessels in stormy weather. I have jumped out of airplanes at night carrying 80 lbs of stuff and thought it was a blast, but the idea of being on the boat in that video makes my knees knock.