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What does FAR 1.602-3(c)(3) actually mean?? (The resulting contract would otherwise have been proper if made by an appropriate contracting officer;)


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8 minutes ago, Jamaal Valentine said:

Are you distinguishing the resulting ‘contract’ from the unauthorized commitment or treating the terms synonymously as used in that subsection? (FAR 1.602-3(c)(2) and (c)(3) seem related (really 1-7 are read together)).

 Reminder: FAR 2.101 defines ‘contract’

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.

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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.

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3 minutes ago, Vern Edwards said:

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.

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.

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18 minutes ago, MileHighAcq said:

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.

Bingo! (Reading that you have settled that ratifications relate to authority issues; forget any compliance issues relating to procedure and content)

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22 minutes ago, Jamaal Valentine said:

Are you distinguishing the resulting ‘contract’ from the unauthorized commitment or treating the terms synonymously as used in that subsection? (FAR 1.602-3(c)(2) and (c)(3) seem related (really 1-7 are read together)).

 Reminder: FAR 2.101 defines ‘contract’

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.

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8 minutes ago, Vern Edwards said:

 A poor man's Joseph Heller.

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.

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20 minutes ago, Vern Edwards said:

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.

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. 

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1 hour ago, MileHighAcq said:

I'm just here to learn, in my never-ending quixotic quest to make some kind of sense of government regulations related to acquisitions.

Thinking, analyzing, and questioning is good.  We all need to do that more

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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.

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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.

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15 hours ago, MileHighAcq said:

so what happens

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).

 

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40 minutes ago, C Culham said:

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).

 

Interesting story, but just because someone thought the contract was an unauthorized commitment doesn't make it one.  I offer it is not an unauthorized commitment for a contracting officer to award a VOIDABLE (vs. void ab initio) contract if the contract value was within the warrant authority of that contracting officer.

EDIT:  To be more complete, I wouldn't even characterize the award of a void ab initio contract as an unauthorized commitment.  The void contract is void not because of anything having to do with the contracting officer's warrant.

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46 minutes ago, C Culham said:

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 violation of the policy, since the CO did not do so knowingly.  In any case, see FAR 3.602.

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2 hours ago, Vern Edwards said:

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.

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.

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