FAR Maintenance Anyone?

[Vern Edwards]

When you get a chance, take a look at FAR 1.602-3(d).

Any questions?

[Jamaal Valentine]

Yeah, when are they going to update it to reflect the actual office of responsibility?

[C Culham]

5 hours ago, Jamaal Valentine said:

Yeah, when are they going to update it to reflect the actual office of responsibility?

Agree

[Vern Edwards]

@Jamaal Valentine @C Culham

6 hours ago, Jamaal Valentine said:

Yeah, when are they going to update it to reflect the actual office of responsibility?

I'm not sure I understand your comments. What to you mean by "actual officer of responsibility"? Please clarify.

[WifWaf]

Quote

(d) Nonratifiable commitments. Cases that are not ratifiable under this subsection may be subject to resolution as recommended by the Government Accountability Office under its claim procedure (GAO Policy and Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 2), or as authorized by FAR Subpart 50.1. Legal advice should be obtained in these cases.

Does GAO handle claims, or are they under COFC jurisdiction?

[here_2_help]

Yeah, that's a good catch. Now look at the dollar threshold at 49.108-4 and compare it to the threshold in FAC 2005-098 (May, 2018), implementing FAR Case 2015-039.

Quote

This final rule amends the FAR to raise the dollar threshold requirement for the audit of prime contract settlement proposals and subcontract settlements from $100,000 to $750,000 to align with the threshold in FAR 15.403–4(a)(1) for obtaining certified cost or pricing data.

 

[Vern Edwards]

The GAO no longer has authority over claims.

See "TRANSFER OF CLAIMS SETTLEMENT AND RELATED ADVANCE DECISIONS, WAIVERS, AND OTHER FUNCTIONS," GAO B-275605, March 17, 1997. 

https://www.gao.gov/assets/b-275605.pdf

See also, OMB, Transfers of former GAO Authorities (including 5 U.S.C. § 5584 and 31 U.S.C. § 3702).

https://obamawhitehouse.archives.gov/omb/foia_transfer_gao_auth/.

However, FAR 1.602-3(d) does not assert that it does.

See anything else?

[WifWaf]

It directs HCAs to submit nonratifiable commitments to GAO, but that would then restrict the exercise of the extraordinary emergency authority granted by Public Law 85-804 (50 U.S.C. 1431—1434) to the secretariat level, per FAR 50.102-3(e)(1)(iii):

Quote

(d) No informal commitment shall be formalized unless—
(1) The contractor submits a written request for payment within 6 months after furnishing, or arranging to furnish, supplies or services in reliance upon the commitment; and
(2) The approving authority finds that, at the time the commitment was made, it was impracticable to use normal contracting procedures.

(e) The exercise of authority by officials below the secretarial level is subject to the following additional limitations:
(1) The action shall not—
(i) Release a contractor from performance of an obligation over $75,000;
(ii) Result in an increase in cost to the Government over $75,000;
(iii) Deal with, or directly affect, any matter that has been submitted to the Government Accountability Office; or
(iv) Involve disposal of Government surplus property.

 

[Vern Edwards]

1 hour ago, WifWaf said:

It directs HCAs to submit nonratifiable commitments to GAO...

No, FAR 1.602-3(d) does not.

[C Culham]

6 hours ago, Vern Edwards said:

@Jamaal Valentine @C Culham

I'm not sure I understand your comments. What to you mean by "actual officer of responsibility"? Please clarify.

It didn't say officer.  The point has since been addressed.

More?  I will play.  Nonratifiable commitment.  What the heck is that?

[Vern Edwards]

21 minutes ago, C Culham said:

Nonratifiable commitment.  What the heck is that?

A commitment that cannot be ratified because it does not meet all of the conditions of FAR 1.602-3(d)(1) - (7).

See anything else?

Hint: FAR 13.305-1.

[C Culham]

15 hours ago, Vern Edwards said:

See anything else?

I give up.  

I will say that nothing jumps out.  I did research the FAR 13 reference and the only thing I found was this -

With respect to theft or misuse of commercial credit cards, the government has no liability based on the established principles that the government is neither bound nor estopped by acts officers or agents acting without authority, nor is it bound by acts of persons, such as thieves, who never have been its agents. (See 64 Comp. Gen. 337 and 341 (1985).

Reference - GAO'S POLICY AND PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES TITLE 7--FISCAL GUIDANCE

[Vern Edwards]

@C Culham The GAO reference is the problem.

According to FAR 1.602-3(d):

Quote

(d) Nonratifiable commitments. Cases that are not ratifiable under this subsection may be subject to resolution as recommended by the Government Accountability Office under its claim procedure (GAO Policy and Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 2), or as authorized by FAR subpart  50.1. Legal advice should be obtained in these cases.

The GAO Policy and Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 2, is no longer in efffect and has not beem in effect since mid 1996. In fact, it appears that no part of that manual is still in effect and that the manual itself no longer exists except in archives. According to an email that I received from a GAO official, what would have remained of it is now in the GAO Green Book of 2014, which does not address claims.

The 1984 FAR did not contain coverage of ratification of unauthorized commitments. The current FAR coverage was added in 1988. GAO no longer had jurisdiction over claims after 1996, and it dropped its Manual's Title 4, which had been devoted to claims.

The FAR councils should have eliminated the reference to the GAO Manual in 1996, but they overlooked it, unless they wanted people to go to one of the archived versions. If so, they should have said which one.

An archived version of the 1991 edition of the GAO manual is at GAO's website: https://www.gao.gov/assets/148815.pdf. It's a 758-page publication. A handwritten note on Transmittal Sheet 4-21 at the beginning of Title 4 says, "Function Transferred from GAO to Executive Branch Agencies as of 7/1/1996. Except Davis/Bacon See 45-51." In any case, it did not mention claims based on nonratifiable commitments.

I learned all this when some Army lawyers dealing with a nonratifiable commitment asked about it. I researched it in order to respond to their inquiry and made the above discovery.

What's my point? What should we learn from this?

Our government is huge and many agencies have produced myriad publications as rules, instructions, and guidance about various governmental matters. There are so many such publications now that the agencies that published them cannot maintain them properly, including GAO and the FAR councils. Many of our federal agencies are understaffed and somewhat in disarray.

In short, just because something is in a regulation or other official publication, do not take it for granted that the publication is accurate. But then, neither did I until somebody raised a red flag.

I'm surprised that apparently no one responding to my inquiry here tried to look up the GAO manual.

[C Culham]

Thanks Vern.   

I am a little confused as I thought Jamaal's quick response and my follow up was getting to the same point.  Guess I was not clear.

Admittedly I did not look up the GAO manual.  I made a decision not to when I found this WIFCON thread that provided that it was no longer in effect.

 

[Jamaal Valentine]

4 hours ago, Vern Edwards said:

I'm surprised that apparently no one responding to my inquiry here tried to look up the GAO manual.

I didn’t think to look up the manual because I knew the Government Accountability Office (GAO) wasn’t the office of primary responsibility (OPR) anymore. Based on that, the manual wasn’t relevant in my mind. 

Upon further review, I can see where FAR might be outlining a process rather than identifying an OPR. However, I still read it as [incorrectly] saying GAO will make a recommendation under their procedures.

[Moderator]

Years ago, I spotted an error in the FAR and reported it to the Regulatory Secretariat.  They quietly corrected the error in the next FAC.

The Claims Division maybe the Transportation and Claims Division sat on the 5th floor of the GAO Building which was a wretched and ugly space--more wretched and ugly than the other parts of GAO.  GAO was able to get Congress to ship Claims to the Executive Branch.  

When I was in Huntsville in 1974, I worked with a fellow from the Transportation part of the Claims Division.  He was a true expert in his field.

--------------------------------------

Addendum:

Look at this correction form.  From before the electronic age.  submit via mail or facsimile  Oh C'mon.  Make it east Secretariat.  Make it a fillable online form that you can click and send the corrction to you.  Geeesh!

[Vern Edwards]

My first point is that the reference to the GAO manual is still there, though effectively nonexistent. Most people don't know the things reported here about GAO authority, or discussed 7 years ago (which I had completely forgotten). Remember, Army lawyers sought clarification.

My second point is that agencies are so overburdened they cannot keep their publications up to date. We are experiencing a regulatory frenzy. The FAR councils are and will be under water until well after the upcoming presidential election. They hardly have time to take a breath. 

I was not commenting on ratification per say. That rule is not complicated in the least. Anyone this side of an idiot can understand it.

Finally, FAR does not say that GAO is the office of responsibility for a nonratifiable commitment. It misleadingly suggests that GAO could handle the matterr as a claim.

@C Culham @Jamaal Valentine Thanks for responding.

[C Culham]

3 hours ago, Vern Edwards said:

Remember, Army lawyers sought clarification.

Vern, I appreciated the discussion. I did not remember the prior discussion either but found it in my research.    And yes the lawyers, I guess their googling missed some important leads to help them in their quest.

Unfair but maybe true the FAR councils may have already drowned?

[Jamaal Valentine]

The points made above are things all practitioners and taxpayers should think about. Thank you, Vern.

I’m kinda disappointed in myself because I’ve known these things, but just kinda accepted it.

[Vern Edwards]

11 hours ago, Jamaal Valentine said:

I’m kinda disappointed in myself because I’ve known these things, but just kinda accepted it.

We all do it! Me, too! It's natural. Which is why we pros in the business have to be alert.

[ricroy]

On 5/11/2024 at 10:19 AM, bob7947 said:

 

Addendum:

Look at this correction form.  From before the electronic age.  submit via mail or facsimile  Oh C'mon.  Make it east Secretariat.  Make it a fillable online form that you can click and send the corrction to you.  Geeesh!

I believe you can submit corrections via this online form: https://www.acquisition.gov/contact-us  

Wondering if anyone has had success with this, or will be submitting FAR 1.602-3(d) and 13.305-1 errors? 

[Moderator]

The online notification is what I was trying to find.  It should work because it ends up with GSA.  

When I notified GSA of a mistake in the FAR for correction, it was done by the next FAC. I did that in the 1980s.  I suspect it would be corrected in the same way in the Technical Amendments area.