Is this an Unauthorized commitment?

[W Adewole]

A Training Officer with authorization to use a SF182 to obligate funds and contract for training did not complete the routing process (BFM and comptroller signature was not acquired) of the SF182 before the training took place. Since the funding was available and the Government representative had the authority, is this action still an Unauthorized Commitment?

[Guest PepeTheFrog]

FAR 1.602-3(b) defines "unauthorized commitment" as "an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government."

You said three things: (1) the training officer has authorization [authority] to use a SF182 to obligate funds and contract for training, (2) the training officer did not complete the routing process of the SF182, and (3) the Government representative had the authority. I assume that the SF182 was not completed 100%, the only thing missing was "the routing process of the SF182," and by "Government representative" you mean the training officer.

Are you sure that (3) is accurate, if the SF182 was not completed 100%?

SF182 Section E (Approvals/Concurrence) is signed by the "Authorizing Official" (Agency Official who is authorized to approve or disapprove request). Did anyone sign that section? If so, who?

 

 

[ji20874]

I wouldn't want to call it an unauthorized commitment -- as Pepe points out, the official had the authority to make the purchase, and is authorized to use the SF-182 to make the purchase -- there may have been a failure in internal coordinations, but there is no need for a contracting official to ratify the commitment.  Just get the signatures on the SF-182.

[C Culham]

Ah the SF-182…..

First the answer as to unauthorized commitment is first determined as to whether the agency considers the authorization and use of the form to be a matter covered under the FAR or not.   If not then the definition and application of unauthorized commitment would not apply.

Suggested reads – Do a search of the WIFCON forum regarding the SF-182.  Then do further research regarding your agency procedure regarding use of the SF-182 and what methods of payment are used to for training authorized by the completion and submission of an SF-182.

[Jamaal Valentine]

Contracting officer's and their delegates have limited 'authority' to enter into agreements on behalf of the Government. Seems reasonable to presume that contracting officer's and their delegates can create unauthorized commitments when they enter agreements they lack the authority for.

Looks like the Training Officer acted outside of their delegated/appointed authority, which would/could create an unauthorized commitment if FAR applies.

[W Adewole]

14 hours ago, PepeTheFrog said:

FAR 1.602-3(b) defines "unauthorized commitment" as "an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government."

You said three things: (1) the training officer has authorization [authority] to use a SF182 to obligate funds and contract for training, (2) the training officer did not complete the routing process of the SF182, and (3) the Government representative had the authority. I assume that the SF182 was not completed 100%, the only thing missing was "the routing process of the SF182," and by "Government representative" you mean the training officer.

Are you sure that (3) is accurate, if the SF182 was not completed 100%?

SF182 Section E (Approvals/Concurrence) is signed by the "Authorizing Official" (Agency Official who is authorized to approve or disapprove request). Did anyone sign that section? If so, who?

 

 

Pepe,

The routing process requires that a signature be obtained from the BFM and the Comptroller, I believe this is to ensure that the funds are available. I am leaning on 5 months of intern experience here but the question is, is the authority of the Training officer legitimate without the signatures/approval of the BFM and Comptroller.

[W Adewole]

10 hours ago, C Culham said:

Ah the SF-182…..

First the answer as to unauthorized commitment is first determined as to whether the agency considers the authorization and use of the form to be a matter covered under the FAR or not.   If not then the definition and application of unauthorized commitment would not apply.

Suggested reads – Do a search of the WIFCON forum regarding the SF-182.  Then do further research regarding your agency procedure regarding use of the SF-182 and what methods of payment are used to for training authorized by the completion and submission of an SF-182.

The training officer stated to me that she had the authority to obligate but my Supervisor is not aware that the authority to obligate using the SF 182 can be granted to a training officer and is also unaware of our policy. I think its time to get a charge code for legal counsel and get our policy person involved. I am just trying to wrap my head around thousands of dollars in touch labor to ratify a $3500 class.

[W Adewole]

15 hours ago, PepeTheFrog said:

FAR 1.602-3(b) defines "unauthorized commitment" as "an agreement that is not binding solely because the Government representative who made it lacked the authority to enter into that agreement on behalf of the Government."

 

 

 

Pepe,

The other issue here is my agency instructions on UAC NAVAIRINST 4200.52A removes the word "solely" from the definition of unauthorized commitment. I am not sure if this was intentional but I believe this changes the definition of unauthorized commitment and opens the gate for what actions can be classified as UAC.

" Unauthorized Commitment, as used in this instruction, means an agreement that is not binding because the Government representative whom made it lacked the authority to enter into that agreement on behalf of the Government."

4200.52A CH-1 - Ratification of Unauthorized Commitments.pdf

[W Adewole]

15 hours ago, ji20874 said:

I wouldn't want to call it an unauthorized commitment -- as Pepe points out, the official had the authority to make the purchase, and is authorized to use the SF-182 to make the purchase -- there may have been a failure in internal coordinations, but there is no need for a contracting official to ratify the commitment.  Just get the signatures on the SF-182.

Thanks ji20874. I read is the same way.

[Guest PepeTheFrog]

 

1 hour ago, W Adewole said:

the question is, is the authority of the Training officer legitimate without the signatures/approval of the BFM and Comptroller.

 

1 hour ago, W Adewole said:

The training officer stated to me that she had the authority to obligate but my Supervisor is not aware that the authority to obligate using the SF 182 can be granted to a training officer and is also unaware of our policy. I think its time to get a charge code for legal counsel and get our policy person involved. I am just trying to wrap my head around thousands of dollars in touch labor to ratify a $3500 class.

W Adewole, originally you said the training officer has authorization [authority] to use a SF182 to obligate funds and contract for training. Now you're saying the training officer told you she had the authority to obligate. Now you're saying your supervisor disagrees with this, and that your supervisor doesn't know anything useful about your policy. This is a familiar pattern.

Unfortunately, you will encounter scores of people who make assertions with no citation. Don't let them infect you. You can really impress the right people at work if you always have something to back up what you say-- a citation or reasoned analysis. It doesn't sound like your supervisor or training officer will be much help. You should do what others on this thread have recommended: find your policy re training officer authority, and determine if anything in that policy, or in any other legitimate source, says that the authority is conditioned on signatures/approval of the BFM and Comptroller.

You won't impress anyone by showing them the URL to this thread.

You might impress someone by saying "(A) The training officer had the authority to do ____ based on citation ____. (B) I found nothing in writing that conditions this authority on the signatures/approval of the BFM and Comptroller. (C) The training officer exercised that authority by doing ____, without the signatures/approval of the BFM and Comptroller. Therefore, what the training officer did was not an unauthorized commitment. If someone can correct me re (A) or (B), please do so, because I'm trying to learn." (Of course, change your argument and position based on what you research.)

Pade orire, W Adewole!

[C Culham]

This took me five minutes, will leave it to anyone else to do the rest.

Per this a SF-182 is not a FAR related transaction –

http://www.acq.osd.mil/dpap/pdi/pc/docs/DoD_Government_Purchase_Card_Directives_Session_Denise%20Reich_2014.07.29.pdf

As supported by this –

https://www.law.cornell.edu/uscode/text/5/4109

And this –

http://www.dtic.mil/whs/directives/corres/pdf/140025v410.pdf

And this –

http://farsite.hill.af.mil/reghtml/Regs/Other/Afars/Appendix%20EE.htm?zoom_highlight=sf-182

and most of all this –

https://www.cnatra.navy.mil/local/docs/instructions/4200.3.pdf

Think of it this way.  The SF-182 is the order/obligating document that allows for use of the GPC to pay the cost of the training that is off the shelf.  It is not a FAR covered transaction unless the training being discussed is tailored or over $25,000.  If tailored or over $25,000 then the application of “unauthorized commitment” as defined by the FAR would apply otherwise it does not.      

[W Adewole]

Update,

Our policy individual had no answers and our legal department has no experience with a similar actions. Legal referred me to the purchase card (PC) office to find out about the process for using the SF182 for training. The PC office informed me that only the PC holder can obligate and this happens after they obtain an approval number/charge code from NERP. Based on the information provided by the PC office, legal has determined that this is a UAC. The best reason I got for the decision is that although, the SF182 is not cover under the FAR, using a purchase card for a class which already occurred falls under the realm of a UAC.

The closest I got to a policy is the SECNAVINSA 12410.3 but nowhere does it say the training officer has the right to obligate.

Thanks to everyone for your guidance

 

[ji20874]

Try https://archive.opm.gov/hrd/lead/pubs/handbook/lrbsa12.asp#Form:  It is an archived page, but the principles are still true.

The SF-182 can be used to obligate funds for training purposes, and the SF-182 can be used for payment purposes -- use of the Government Purchase Card is not necessary.

Contracting officers should leave training specialists alone and let them do their SF-182s as they may be allowed under agency rules. Depending on agency regulations and practices, training officers may approve SF-182s with or without competition and at whatever prices they find as they see fit as part of their responsibility to manage training dollars and outcomes, and those SF-182s can also serve as payment forms. Contracting officers should leave the training officers alone and let them do their thing. Don't we already have enough work that is properly ours that we don't need to intrude on the SF-182 process?  I don't know whether your agency regulations allow a training officer to make a training purchase decision via the SF-182.

Here's a quote from the OPM website--

Use of the Training Authorization Form

Agencies may use an authorized training form to procure and certify payment of training expenses through Government or non-Government facilities. The form is certified by training officials and supervisors instead of the contracting officer under a procedure negotiated by the two offices and addressed in the agency's administrative directives. Comp. Gen. B-210334 (July 14, 1983).

Under typical negotiated procedures, the Training Authorization Form (SF-182) or equivalent is authorized for use to obligate funds, contract for training, and certify payment of approved training expenses under the following conditions:

1. the training cost of a single training event, program, or instructional service does not exceed the simplified acquisition process dollar limit established by U.S. General Services Administration;

2. the cost is of a fixed nature, i.e., price per student or price per course, program, or service; and

3. the program, course, or instructional service is off-the-shelf and no modification or development resulting in increased cost to the Government is needed to meet the organization's needs.

The Training Authorization Form is also used for requesting, approving, and certifying payment for attendance at meetings, conferences, seminars, and symposia where the primary purpose is to train an employee to meet a performance improvement related need. The form is not used to purchase general supplies, training equipment, or non-training services.

When an agency training course or program requires new design and development, the authorized contracting officer contracts for the service on behalf of and as requested by the responsible training or management official.

Office of Personnel Management (OPM) announced the new SF-182 form entitled "Authorization, Agreement, and Certification of Training." The electronic SF-182 will enable OPM to maintain consistency in collecting training data and will assist Agencies in reporting training requirements.

The electronic SF-182 form can be downloaded at http://www.opm.gov/hrd/lead/index.asp orhttp://www.opm.gov/forms/html/sf.asp.

[Todd Davis]

This issue has come up within our agency in the past and we also looked to OPM guidance regarding use of the SF 182 versus the procedure(s) stipulated in the FAR.  A number of agencies have relied on OPM guidance in drafting agency policy, some of which do not require CO approval of transactions and have instead delegated this authority to others such as training officers or human resource officers citing OPM guidance that the FAR does not apply to certain transaction involving the acquisition of training.  As others have said, the first issue that must be resolved is whether or not the person has been given that authority within your agency by policy and/or delegation to acquire training services and if agency policy permits the training to be acquired without CO approval (following the procedures of the FAR).

 

The OPM Training Handbook cited in the past is now part of “archived” material on the OPM website.  The website now states under training FAQs: “The intent of the SF-182 is to approve and record completion of employee training—not for use as a procurement document. However, agencies that choose to use the SF-182 to procure training should consult with the agency contracting office for agency specific policies on the use of SF 182 as a training procurement option.”

https://www.opm.gov/faqs/QA.aspx?fid=f4d32b0e-ecaa-409c-a1ae-c08516acc3a3&pid=047e4070-b113-4011-823e-7e8d22f0fe0a

 

This past OPM guidance references Comp. Gen. B-210334 (July 14, 1983).  The decision was in response to a request for an advance decision from a DoD finance and accounting officer.  In that case a finance and accounting officer denied payment because the he thought the agreement was invalid because someone (civilian personnel officer) other than a CO authorized the acquisition, which he believe was prohibited by agency policy at that time.  

 

The GAO concluded that although the regular procurement procedures should have been followed to obtain the training course, payment to the contractor could be made on the basis of quantum meruit provided that an authorized contracting official recommends payment.

 

As part of their rationale and in interpreting agency policy, the GAO stated “Therefore, regular Procurement procedures should have been followed to obtain the Carroll-Donahue [contractor name] course. To hold otherwise would suggest that all off-the-shelf training or educational courses could be obtained by federal agencies from private firms outside the formal procurement process.”

 

While the GAO may have interpreted the agency’s policy correctly in reaching their conclusion, that the civilian personnel officer did not have authority to sign off on the acquisition, I find it interesting the GAO suggested/implied it would inappropriate to obtain commercial off-the-shelf training outside the contracting process.

 

I also looked at GETA (Pub L. 85-507).  At 72 STAT 331 it states (at Sec. 9) “The head of each department is authorized to enter into agreements or make other appropriate arrangements for the training of employees of such department by, in, or through non-Government facilities in accordance with this Act, without regard to section 3709 of the Revised Statutes (41 U. S. C. 5).”

 

41 U.S.C. 5 is now section 41 U.S.C. 6101.  That section only deals with “Advertising requirement for Federal Government purchases and sales.”  It doesn’t talk about not following procurement procedures or competition requirements.

 

My conclusion is that I don’t think the procurement of training can bypass the contracting procedures required by the FAR.  I think this is an area where OPM and the FAR Council could provide some clarity.

 

Thoughts?

[Guest Vern Edwards]

Thought: That was a great post. It convinced me that the conclusion is true.