14 FAH-2 H-130
Contracting AUTHORITY
(CT:COR-41; 09-22-2015)
(Office of Origin: A/OPE)
14 FAH-2 H-131 DELEGATION OF
CONTRACTING AUTHORITY
(CT:COR-41; 09-22-2015)
a. In contrast with commercial contracting, where a
principal is bound by the "apparent authority" of one of its agents,
the U.S. Government is bound only by an individual who has been delegated
contracting authority and who acts within the limits of that authority. This
means that only a person who is formally designated as a contracting officer
can solicit proposals, negotiate, award and change contracts on behalf of the
U.S. Government.
b. The Procurement Executive (A/OPE) appoints all
contracting officers in the Department of State. This is done through the
issuance of Form SF-1402, Certificate of Appointment, as a contracting
officer. A/OPE maintains a "warrants system" application intranet
site to facilitate the appointment of contracting officers as well as to query
the database by person to see current status and limits of their contracting
officer authorities.
c. The contracting officers representative (COR) is
not authorized to commit the U.S. Government. The COR's role is to identify
program requirements and the funds needed to acquire them. Any actions taken
by a COR or any unauthorized person which obligates the Department to pay for
goods and services requires ratification before payment can be made. CORs can
also be held personally liable for obligating the U.S. Government, or receive
disciplinary/adverse action (see 14 FAH-2 H-132(c)).
14 FAH-2 H-132 UNAUTHORIZED COMMITMENTS
(CT:COR-41; 09-22-2015)
a. The Code of Federal Regulations (CFR) Federal
Acquisition Regulation (FAR) 48 CFR 1.602-3(a) defines an unauthorized
commitment as an agreement that is not binding solely because the U.S.
Government employee who made it lacked the authority to enter into that
agreement on behalf of the U.S. Government.
b. An unauthorized commitment occurs when someone other
than a contracting officer commits the U.S. Government to a contractual action,
such as directing a contractor to perform work or deliver items. This also
includes cases where a contractor is asked to continue performance under an
existing contract without adequate funding. Only a contracting officer may
bind the U.S. Government contractually.
c. Unauthorized commitments may result in personal
liability for the individual who made the commitment. Department personnel
responsible for unauthorized commitments must provide detailed written
explanations of their actions and may be subject to disciplinary action,
especially if violations are flagrant and/or continuous (see 31 U.S.C. 1349 and
3 FAM 4377).
Unauthorized commitments may result in a violation of the Anti-Deficiency Act, 31
U.S.C. 1341, if funds are not available.
d. Contractors who act on unauthorized commitments do
so at their own risk. They are not entitled to payment unless and until the
unauthorized commitment is ratified. Payment is delayed or may not be
forthcoming at all if the action is not ratified.
e. Upon learning of an unauthorized commitment, the
contracting officer should take immediate action to stop the contractor's work,
whenever possible. The contractor should be informed that an unauthorized
commitment has been made and that no additional work should occur until
ratification is approved.
14 FAH-2 H-132.1 Ratification
(CT:COR-41; 09-22-2015)
a. Ratification is the process whereby designated
individuals convert an unauthorized commitment to a legal contract.
b. At the Department of State, only the heads of the
contracting activities may ratify actions up to $1,000. The Procurement
Executive must ratify actions exceeding $1,000. See Department of State
Acquisition Regulation (DOSAR) 48 CFR 601.601-70 for the list of heads of
contracting activities.
c. The authority (48 CFR 1.602-3 (c) to ratify an
unauthorized commitment, however, has certain limitations. Ratification may
occur only when all of the following conditions are met:
(1) The supplies or services have been provided to and
accepted by the U.S. Government, or the U.S. Government otherwise has obtained
or will obtain a benefit;
(2) The resulting contract would otherwise have been
proper if made by an appropriate contracting officer;
(3) The contracting officer determines the price to be
fair and reasonable;
(4) The contracting officer recommends payment. The
contracting officer may request concurrence from the Office of the Assistant
Legal Adviser for Buildings and Acquisitions (L/BA) if there is a question of
propriety or a legal issue);
(5) Funds are available and were available at the time
the unauthorized commitment was made; and
(6) All requirements of DOSAR 48 CFR 601.602-3-70 for
documentation and explanation of unauthorized commitments have been met as
described at 14
FAH-2 H-132.2.
14 FAH-2 H-132.2 Ratification Procedures
(CT:COR-41; 09-22-2015)
a. The individual who made the unauthorized commitment
must submit all records and documents concerning the unauthorized commitment to
the contracting officer. That individual must provide a complete written
signed statement of the facts, including:
(1) Why normal acquisition procedures were not
followed;
(2) Why and how the vendor was selected;
(3) A list of other sources considered;
(4) A description of work or products;
(5) A statement regarding the status of performance;
(6) An estimated or agreed price;
(7) Certified funding citations; and
(8) A statement as to why he or she should not be
personally liable for the cost, e.g., a public purpose was served and no
personal benefit was received.
b. If the individual who made the unauthorized
commitment is no longer available to attest to the circumstances, an officer
from the responsible office must provide the documentation. The statement must
identify the individual responsible for the unauthorized commitment.
c. In addition, a cognizant management official from
the office that employed the individual who made the unauthorized commitment at
the time the unauthorized commitment was made must provide a statement
detailing actions that the management official will take to ensure that such
commitments will not occur again under the same or similar circumstances.
d. The statement and request for ratification must be
cleared by the executive director of the bureau that employs (or employed) the
person who made the unauthorized commitment.
e. The contracting officer assigned the ratification
action must review the documentation and prepare a recommendation to the ratifying
official. The contracting officer must either recommend that the ratifying
official approve and ratify the unauthorized commitment; or, disapprove the
ratification of the unauthorized commitment.
f. The contracting officer will submit the complete
file to the ratifying official for review and determination. For actions
exceeding $1,000, the file must be submitted through the head of the
contracting activity to the Procurement Executive.
g. If the ratifying official ratifies the unauthorized commitment,
the file is returned to the contracting officer for issuance of the appropriate
contractual document(s). If the action exceeds $1,000, the file is returned
through the head of the contracting activity.
h. If the request for ratification is not justified,
the ratifying official will return the request to the head of the contracting
activity (if over $1,000) or to the contracting officer (if $1,000 or less)
with a written explanation for the decision and a recommendation for
disposition of the action.
h. If the ratification is not approved, the head of the
contracting office will prepare a letter to the contractor advising that the
ratification was not approved.
14 FAH-2 H-133 through H-139 Unassigned