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For the reader’s reference, here is a link to the previous discussion in the contract administration topic area.

On 11/2/2024 at 9:24 AM, C Culham said:

All in all in a contract that reserves a contract administration approval for the CO, or one he/she has delegated the authority to, cannot be approved by any other individual otherwise it is tantamount to an unauthorized commitment and must be ratified by an official with the express actual authority to do so.  Utilizing any other action that implies the approval was appropriate puts a contractor at risk that any adverse effect incurred as a result of the unauthorized approval would not be corrected causing the contractor to seek other avenues for correction.  Forcing a contractor to do so in the cases where the approval meets the conditions of ratification in is opposition to regulatory language of the FAR that that encourages ratification to avoid GAO and disputes processes  Likewise pursuing ratification supports the regulatory intent that efforts other than ratification should not be used where those efforts encourage unauthorized commitments.

As clear as mud.

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In the specific (and only) examples described in the referenced thread, I find it rather silly to assume that a KO can’t simply approve those routine contract admin actions that he/she would have otherwise approved anyway*. There was no additional commitment of funds, risk, effort or change in the contract requirement. 

* per statement by the Original Poster that they would have approved the actions if they were sent to them.

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C Culham said:

Perfect....do away with all CO approvals as by your assumption of facts the government will always approve or otherwise agree with a contractor.  I love the ideal...no more GAO and no more courts!

What you said makes no sense, Carl. I didn’t say do away with any KO* approval or that the government will always approve or agree with a contractor.

*Used here, the “KO” means the Contracting Officer or Contracting Officer’s Representative, acting within their authority.

Here, the KO can (should) now approve the two described examples, as he or she would have approved both routine contract admin actions anyway.

And what is the contractor going to claim here** (a rhetorical question only)??
** no change in requirement, no directed additional cost or time, no delay to the contractor.

We also described corrective actions for the KO to take to avoid these situations in the future.

If the OP’s office is “reviewing some internal processes for contract administration”, specifically with regard to authority, apparent authority, etc.  I suggest that they read applicable sections of any edition of the book Administration of Government Contracts by Nash, Et al.

In the original thread, we were not told if the KO knew of the "approvals" but did nothing to countermand them.  If such knowledge existed, constructive approval by the KO may have occurred.

On another point, there are three types of authority - actual authority, implied authority and apparent authority.  The first two apply to government employees, but the concept of apparent authority does not.  In the end, when all facts are examined, it may turn out that the folks who granted the approvals had implied authority so that the approvals are not unauthorized.  We simply don't know.

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SCENARIO

Background. A government office in Los Angeles has awarded a fully-funded cost-plus-fixed-fee R&D contract for the conduct of a project. The project was to be conducted in two phases under a single contract lime item.

The contractor had to commence performance of Phase I within 24 hours after contract award. Upon completion of Phase I the contractor had to notify the COR and present the Phase I results. The contract expressly states that the contractor may not commence performance of Phase II until expressly authorized to so by the CO in writing. The contract also expressly states that only the CO may authorize commencement of Phase II. Phase II is not a Government option. If Phase I is completed satisfactorily the CO must authorize the contractor to proceed or terminate the contract for convenience.

Upon being presented with the results of Phase I the COR will review them and notify the CO whether they merit proceeding with Phase II. If the results do not merit proceeding the CO may either (1) direct the contractor in writing to take specified actions and present new Phase I results to the COR within a specified period of time, or (2) terminate the contract for convenience. 

Facts. Upon the early completion of Phase I the contractor presented the results to the COR. The COR found them to merit proceeding and sent the CO a memo report to that effect. However, the CO was on official travel status and could not read the memo or send a written authorization to proceed with Phase II immediately.

The contractor was eager to commence Phase II. Delay could be costly. But the CO was incommunicado for official reasons. So the COR orally advised them that the CO would issue the written authorization to proceed upon her return and that it would be okay to proceed with Phase II immediately since the authorization was sure to be given. Based on the COR’s “go-ahead”, the contractor commenced Phase II work prior to receiving written authorization from the CO.

Upon her return from official travel status a week later the CO reviewed the COR’s finding about Phase I, agreed that the results of Phase I merited proceeding, and was writing the Phase II authorization to proceed when she learned that the contractor had started the Phase II work the week before based on the COR's okay.

QUESTIONS: 

1. Given the above facts, does FAR 1.602-3 prohibit the CO from authorizing the contractor to proceed with Phase II?

2. What would you do?

Vern Edwards said:

QUESTIONS: 

1. Given the above facts, does FAR 1.602-3 prohibit the CO from authorizing the contractor to proceed with Phase II?

2. What would you do?

My answers:

1.  The CO can authorize it.  The contractor proceeded at risk and the COR overstepped their authority.  But the CO isn’t faultless.  The CO knew they would be out of touch doing this period and should have either made arrangements for another CO to approve, delegate one time authority to the COR, or found a way to stay in touch.  It’s a case where the contractor proceeded without waiting for CO approval.

2. I would authorize it.  But I would have all the parties present in a meeting to go over the mistakes made and especially let the contractor know how this made them financially vulnerable.  It’s especially important for the COR and contractor to fully understand so there’s no repeat. [Edit:  I would document the file explaining my rational and actions taken:]

Deleted

Thanks, formerfed. Let's see what any others have to say and what if any reasons they give.

1. I agree with formerfed’s analysis and conclusions, as far as he went.

The KO was negligent in her duties and responsibilities by being unreachable for an entire week without making arrangements to delegate her authority to another person or to be able to communicate orally or by electronic means, at least after hours if the only option. A KO can issue a Change order by electronic means per FAR 43.201 (c), then formally follow up with a Modification as soon as possible. So why can’t they issue the required NTP by email or text message, then follow up by other means if required. Or arrange for a temporary KO by email or text with notice to the contractor. Or, or , or, etc.

The Government has a fundamental responsibility of good faith and fair dealings to the contractor and to the public to have authorized officials reasonably available to perform its contractually required functions and actions.

The COR did what he or she had to do to protect both the Government’s and Contractor’s interests and to avoid delays and delay costs- but also assumed personal risk…

The contractor did assume risk by relying on the assurance of the COR that the missing KO would issue the NTP upon her return and that it would be okay to proceed with Phase II. 

2. I would be embarrassed. I’d issue the NTP and, if legally allowable,  CONFIRM the previous date of the NTP to authorize any costs prior to the date of my return to duty. Yes, the COR, contractor and I should sit down together and discuss as formerfed said.

I might also state that I should have either been available for communications or made arrangements for a temporary replacement for an extended absence and that I wouldn’t repeat it either.

Thanks, Joel!

The issue raised by C Culham's now self-deleted posts was "unauthorized commitment" and the need for ratification.

Referring to my scenario, do you think the COR's communication with the contractor constituted a "commitment"?

Given the scenario, do you think it's in the same category of acts as someone𑁋 without contracting authority, without an existing contract, and without prior coordination with the contracting office𑁋calling a supplier and telling them to ship a quantity of goods to the government and that the paperwork will follow?

@formerfed If you're still reading, I put the same question to you.

I don’t have much sympathy for a KO who was unreachable for an entire week, without either finding some time during a 24 hour period to keep up or else arranging for a temporary substitute or delegation of duties to fulfill the Governments KO function.

When I retired in 2007, I was a member of the USACE Program Management Team (PMT)  for the $50Billion+  Army MILCON Transformation Program.

I was responsible to help develop uniform policies,  procedures,  Standardized design criteria,  standardized design-build acquisition methods, procedures, incorporating new means and methods, accelerated execution timelines, all at reduced cost.

Contract and Task Order Awards had to be made for full-scope, within the Budgeted Program Amounts. This had seldom been achieved prior to this Program.

This was necessary to meet  the Army’Transformation Program’s rigorous time, cost, uniformity and enhanced functional and quality requirements for new facilities to relocate and re-organize 1/3 of the Army Organizations in a compressed time.

If the Corps of Engineers couldn’t meet the new Army goals and objectives for full scope, accelerated time, high quality, vastly increased workload, all within the Programmed Amount budgets,the Army would seek Congressional Authority to hire the leading industry design- construction firms to manage and execute the Program.

The Army MILCON annual workload alone would increase by up the six times during the peak of the Program.

Before retirement, I was on the PMT’s for acquisition, contract execution and contract admin from 2005-2007.

We developed three Design-Build model RFP’s to be centrally maintained and electronically used  by all Districts for initial single award and Multiple Award Task Order Contracts and for Task Orders that would be used for about 47 different, standardized facility types.

We updated the model RFP’s on a monthly basis as the design criteria matured, for lessons learned, etc. We had daily contact, interaction, input and decision making actions with the various Districts and Facility Standardization Teams for the monthly updates. Much travel involved, too.

After my retirement date that June, I worked as a contractor member for several months, until I was brought on in late fall as a re-hired Annuitant for the next six years. I worked remotely from home. I worked flex-time, irregular hours and was paid only for the hours that I worked. 

Well, I deer hunted at a hunting camp in a nearby county for a few days a week over a 3 1/2 month season each year. But the workload and monthly update deadlines remained constant. I spent many hours in tree stands on different mountain sides where ever I could get Blackberry telephone reception, working on the MILCON Transformation Program.  

Edit: after posting I just saw Vern’s post above. I will respond ASAP but have to take my dog to the park, go vote and grocery shop for tonight. 🤠

Vern Edwards said:

Referring to my scenario, do you think the COR's communication with the contractor constituted a "commitment"?

Given the scenario, do you think it's in the same category of acts as someone𑁋 without contracting authority, without an existing contract, and without prior coordination with the contracting office𑁋calling a supplier and telling them to ship a quantity of goods to the government and that the paperwork will follow?

Quickly, I don’t think that there was any new commitment of funds, scope, schedule or change in contractor requirements by the government. It was a fulfillment of the government’s obligation to the contractor under the contract- with the mutual intent to avoid additional costs or delays…

It’s not the same category as the second situation you described. Not in spirit or reality.

Off to the park- my dog is begging and panting for relief. 🐕 .

Thanks, Joel!

In fairness to my poor fictional CO, I set her up in order to create the issue. She's not to blame. A director of R&D contracting I should have made sure she had a backup.

My bad.

I agree with Joel.  It’s more like an administrative delay rather than a commitment because the contracting officer wasn’t available.  The COR approved Phase 1 and sent a memo accepting the initial phase.  CO direction, while needed, wasn’t available to ensure timely performance.   It didn’t modify the contract, require additional funding, or change anything else.

BTW, the Milcon Transformation Pprogram emphasized performance based design criteria, commercial industry standard  materials, means and methods, allowing flexibility, in how to meet those requirements.

Vern Edwards said:

Thanks, Joel!

In fairness to my poor fictional CO, I set her up in order to create the issue. She's not to blame. A director of R&D contracting I should have made sure she had a backup.

My bad.

You are forgiven, Vern. I hope you let the poor COR off with a slap on the wrist or better yet a congratulations and handshake . Sorry I rambled on but I wanted to make a point about doing whatever it takes to get a critical job done even when you are out of the office. .🤠

Vern Edwards said:

QUESTIONS: 

1. Given the above facts, does FAR 1.602-3 prohibit the CO from authorizing the contractor to proceed with Phase II?

2. What would you do?

1.  Yes because the COR's action was a unauthorized commitment as it was an agreement that is not binding solely because the COR who made it lacked the authoirty to enter into the agreement on behalf of the Government and the action by the COR did effect delivery and other terms of the contract.  It was an action that directed the contractor to a act in conflict with the contract terms that required express written direction from the CO as the only one to provide the direction.  

2. Require the COR to follow the cure administrative procedure to ratify the commitment.  As the CO I would recommend to the Chief of Contracting Activity, or that individual otherwise delegated,  that the action be ratified.  A CO that handles the matter otherwise is shirking their responsilibilty to ensure performance of all actions for effective contracting and compliance with the terms of the contract which in doing so does not  safeguard the interests of the the United States in the contractural relationship because it did not follow the regulations and the contract and puts the Government at risk. 

Here I note that following the ratification process is not admonisment, a penalty, and/or adverse personnel action it is as noted, a cure, allowed for in the regulations. A CO that would process the matter as a ratification is not acting unwisely they are following their delegated authority pursuant to FAR 1.6 and wisely so.

Thanks, Carl.

On 11/4/2024 at 7:59 AM, Vern Edwards said:

1. Given the above facts, does FAR 1.602-3 prohibit the CO from authorizing the contractor to proceed with Phase II?

2. What would you do?

My answers:

1. No. FAR 1.602.3(b)(5) states:

Quote

(5) Unauthorized commitments that would involve claims subject to resolution under 41 U.S.C. chapter 71, Contract Disputes, should be processed in accordance with subpart  33.2, Disputes and Appeals.

2. The contract is CPFF. Pending ratification I would have to reject any invoice for costs incurred for the performance of Phase II as unallowable. Moreover, what would happen if if the ratification were to be denied? The contract might have to be terminated. Either of those actions would be the basis for a contractor claim.

FAR 33.204, Policy, states, in pertinent part:

Quote

The Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim....

Emphasis added.

In light of the circumstances, FAR 1.602-3(b)(5) and FAR 33.204, and in response to the contractor's agreement not to act and incur costs based on unauthorized guidance again, I would issue the authorization to proceed with Phase II, and we would put the matter behind us and get on with the work within 24 hours of my return from official travel. I would buy the COR a beer.

Contracting officers are expected to solve problems, not be a problem.

Vern Edwards said:

Contracting officers are expected to solve problems, not be a problem.

One of the functions of the company I worked for was reviewing the contracting function of agencies.  Several engagements were at the request of senior management (two Deputy Secretaries, several Assistant Secretaries, and lots of CFOs).  We conducted interviews and surveys of management including program offices.  Like it or not, this theme in the above quote or some variation of it was almost always mentioned.

In fairness, our interviews often showed a lack of understanding of contract rules by technical/program personnel.  They don’t realize how tedious and cumbersome the process and viewed it as a rule based maze which they fail to comprehend.  But in those cases where this theme wasn’t mentioned, we dug into reasons and found the surveyed personnel either received training from the contracting staff or had favorable working relationships in the past with contracting personnel that resulted in collaborative experiences.

The unfortunate side though was the very common expression that contracting officers are a hurdle that needs to be overcome to get their mission needs met.  Those contracting personnel were viewed as compliance focused and totally risk adverse in their actions with little or no regard to the program mission.  I can imagine the reaction from those people faced with situations described in this example of possible ratifications when most would say they aren’t.

An old boss once told me that I wanted to be the guy they come to when they're in trouble, not the guy they steer clear of.

formerfed said:

formerfed said:

In fairness, our interviews often showed a lack of understanding of contract rules by technical/program personnel.

Contracting officers are expected to solve problems, not be a problem.

I can identify with formerfed's comments but with a twist.  I once worked for an activity that utilized the Intergovernmental Personnel Act so that people from state and local government agencies, universities and some non-profits would come for assignments with the agency.  Some of them acted as program/project managers.  Getting them to understand the government procurement system and the roles and responsibilities of the various players in that system was quite an undertaking.  I remember a guy I worked with, who was quite competent, being told by one of these detailees that he was "nothing but a pimple on the posterior of progress."

@Vern Edwards Your old bosses suggestion is a great thing for all of us to keep in mind.  That’s also the kind of boss everyone should have

Retreadfed said:

I remember a guy I worked with, who was quite competent, being told by one of these detailees that he was "nothing but a pimple on the posterior of progress."

😱

A few thoughts and then a formal reply.

First I have asked Bob to delete the entirety of this thread based on the overall terms of use.  It will be up to him.   I have done so as it is clear to me in my read that the thread has been hijacked to further inuendo by some regarding what some believe to be my abilities to reason.   As such it detracts from the intent of my purpose in starting the thread.

I just want to asure the Forum that I have no ill intent with regard to anything others post until it becomes by fact or subtle intention, personal.  I will simply respond same in defense.

In truth I spend a fair amount of time researching and contemplating my responses especially when the discussion becomes detailed.  If my posts do not meet certain individuals personal standards so be it, just be aware that I do the best I can and will continue to  be a valued participant in Forum.   My further participation I have, as well, left up to Bob.   Now to the discussion at hand....

Vern Edwards said:

My answers:

1. No. FAR 1.602.3(b)(5) states:

2. The contract is CPFF. Pending ratification I would have to reject any invoice for costs incurred for the performance of Phase II as unallowable. Moreover, what would happen if if the ratification were to be denied? The contract might have to be terminated. Either of those actions would be the basis for a contractor claim.

FAR 33.204, Policy, states, in pertinent part:

Emphasis added.

In light of the circumstances, FAR 1.602-3(b)(5) and FAR 33.204, and in response to the contractor's agreement not to act and incur costs based on unauthorized guidance again, I would issue the authorization to proceed with Phase II, and we would put the matter behind us and get on with the work within 24 hours of my return from official travel. I would buy the COR a beer.

Contracting officers are expected to solve problems, not be a problem.

Vern created a scenerio where the facts were canned to fit into the answers.    While his overall approach is thought provoking I have the following response.

Part of the premise offered is that the ratification would not be approved.  I do not believe nonapproval to be the case.   My view is based on experience where over my 39 year career as a CO in processing ratification requests I had zero not ratifed when I as the CO recommended ratification should occur.  In fact one ratification was six figures, involved myself and required the signature approval of the head of agency. 

I would offer that the ratification in the scenerio would be approved and is exactly why the cure process of ratification is in place.  As I have already stated in advance of any issue raised by a contractor so as to avoid any unnecessary controversy.  Post knowledge but pre-claim, as the scenerio states,  ratification would work the same - a cure.  And such a cure would be solved at the level of the CO wherein the CO would be addressing the matter as provided in regulation.

If I were the CO in such as case as described I would communicate to the contractor stating that the approval was not proper, a reminder of who has actual authority, let the contractor know the ratification process was being followed and the CO was recommending ratification and in doing so I would advise that if invoiced the amounts would not be paid until the action was ratified.   It is true that there is a possiblity of non-ratification and if that occurred then the contractor has the remedy of claim and I would go from there.  My communication would be open, transparent and matter of fact.

As to a claim it is well settled that if a claim results from an unauthorized action then the world of settlement becomes much bigger such as possible constructive change  and beyond.  Also it is well settled that if a constructive change, the matter could amount to an unauthorized commitment that would need ratification at the most, and at the least higher level approval, before settling.

Bottomline an attempt has been made to justify approval by an individual that does not have actual authority to do so.   In the world of contracting I get that nothing is 100% and a route taken depends on the facts.  Yet, my research suggests that in the world of Federal contracting nothing and I mean nothing trumps actual authority, unless a court of proper jurisdication decides otherwise based on facts.  Until such occurs the regulation for ratification is provided as a cure to avoid as best and factually possible the court route.

 A CO following the cure process of ratification is not a problem he/she is problem solver.  It is the reason for the regulatory process.   In my career I proved it and was in fact the person that folks would come to as not being considered the pimple on someone's ass.

@C Culham Thank you, Carl.

However, you made a false statement about what I said:

C Culham said:

Part of the premise offered is that the ratification would not be approved.

I did not premise that the ratification would not be approved. Rather, I considered the possibility that it might not be approved. 

Vern Edwards said:

Moreover, what would happen if if the ratification were to be denied?

I took that possibility and its possible consequences into consideration in determining whether the policy in FAR 1.602-3(b)(5) applied to the case, which it clearly does since the entire matter is one of contract administration, not contract formation. However, you did not address the policy in FAR 1.602-3(b)(5) in any of your posts that I recall, Surprising, since you are otherwise such a stickler for the rules in this regard.

You said:

C Culham said:

As to a claim it is well settled that if a claim results from an unauthorized action then the world of settlement becomes much bigger such as possible constructive change  and beyond.  Also it is well settled that if a constructive change, the matter could amount to an unauthorized commitment that would need ratification at the most, and at the least higher level approval, before settling.

You provide no citation in support of your assertion of what you say is "well settled," but it's irrelevant, a distraction, a red herring, because my scenario did not involve a change of any kind, constructive or otherwise. (By the way, the constructive change would also have to be a cardinal change, outside the bounds of the existing contract, in order to argue against applicability of FAR 1.602-3(b)(5).)

You have made your point. Several times. You would seek a ratification. Four experienced professionals, all of whom you have long known via Wifcon Forum𑁋Joel Hoffman, formerfed, Retreadfed, and I𑁋have said we would not pursue a ratification and have said why we would not, for various reasons. I think all four of us have been chiefs of contracting offices or higher at various points in our careers. But, in my experience. once you are committed to a position you will not change your mind. Thus, we are at loggerheads.

You have answered my questions and so have I. Since there is no chance of reaching agreement between you and the four of us, I think we have to let other Wifcon Forum members decide on their own what course they would take.

I consider your request that Bob delete this thread to be an act of intellectual cowardice. I have nothing more to say, and I see no point in refuting another one of your arguments.

Vern Edwards said:

You provide no citation in support of your assertion of what you say is "well settled," but it's irrelevant, a distraction

It is not a red herring.  I invite you to provide citation that disproves my assertion.   I will read whatever you offer as unlike you I won't simply say its too long or whatever.

Vern Edwards said:

FAR 1.602-3(b)(5)

Yes I did.

Vern Edwards said:

chiefs of contracting offices or higher at various points in our careers.

So you are saying that as a COCO you would not ratify the event in your scenerio?  Interesting.

Vern Edwards said:

once you are committed to a position you will not change your mind

The pendulum swings both ways and always will.

Vern Edwards said:

You have answered my questions and so have I.

No sir you have not at least by my read.   No where in any of your posts to this thread have you answered the questions that were in my original post that I since deleted.  And is the very reason I deleted it because if I posed a question as to why you would not answer you would revert to you usual by saying too long, don't have to answer etc.  Rather like a part of the four you revert to personal inuendo as defense rather than providing response and facts.

Agreement is only if I see it your way.  I have never demanded you see it my way, I just hoped you would answer legit questions but you won't, oh well, it goes on as your usual.

Yep, case closed and I hope you agree Bob should delete the thread unless you agree I am a pimple on someones ass!

@C Culham I do not think you are pimple on anyone's a--, and I do not think that comment, made by someone else, was directed at you. I do not want the thread deleted. You started it, and you should live with what you started.

I like and respect you. I know you to be a good guy. We just think differently, have different operational philosophies, and sometimes rub each other the wrong way. I have praised you in the past, as you damned well know.

But I come from the military program and project contracting environment, which I loved, and in which relationships among program or project personnel are crucial to mission success. It's not like working in a central contracting office, where COs might not even know the people they are supporting, much less see them and sit in meetings with them every day. The program and project world is major league, not small ball. You apparently come from a different contracting world. In my program and project world, when a problem arose I wanted the boss to ask: Where's Vern? And they did. Problems were my specialty.

I would never submit a program COR or project COR to a ratification because of a contract administration misstep if there were any way that I could avoid it. My superiors and colleagues in the program, project, and contracts offices would not have appreciated such a course, and would distrust me afterward, and for good reason. Promotions and careers could be at stake. My philosophy gave me many high-ranking allies, and took me from GS-05 to GS-15 in the minimum time the law allowed, ahead of my peers. And now you can find references to my articles in court decisions.

FAR 1.602-3(b)(5) was included in the ratification rules for a reason: To treat such unauthorized acts during contract performance as matters to be handled by the CO, and as CO I would follow the policy and settle such matters at my level whenever possible, as the policy says should be done. 

I think any CO who would refer the matter described in my scenario for ratification would be either incompetent or an utter jackass, not a mere pimple.

Vern Edwards said:

I do not think you are pimple on anyone's a--, and I do not think that comment, made by someone else, was directed at you.

I made the statement and it was not directed at Carl or anyone else at this forum.  It was merely an anecdote regarding the problem that sometimes arises in dealing with personnel outside the contracting profession, in that case Intergovernmental Personnel Act detailees.

@Vern Edwards  We might be getting somewhere but let's see.

Vern Edwards said:

I do not think you are pimple on anyone's a--, and I do not think that comment, made by someone else, was directed at you.

So as you state four commenters in the thread, so who of the four was it directed at in your view?

Vern Edwards said:

I think any CO who would refer the matter described in my scenario for ratification would be either incompetent or an utter jackass, not a mere pimple.

Oh wait now I get it I have graduated so someting even better.

Vern Edwards said:

I have praised you in the past, as you damned well know.

And you also unequivcally and without apology have stated in the past that your mission is to discredit me have you not?  Or do I need to resurrect the post that did so?  Or better yet what is the intent of your closing comment.

Bluntly Vern, your pandering is not worth it, but thanks anyway.

On 11/4/2024 at 9:59 AM, Vern Edwards said:

The contractor had to commence performance of Phase I within 24 hours after contract award. Upon completion of Phase I the contractor had to notify the COR and present the Phase I results. The contract expressly states that the contractor may not commence performance of Phase II until expressly authorized to so by the CO in writing. The contract also expressly states that only the CO may authorize commencement of Phase II. Phase II is not a Government option. If Phase I is completed satisfactorily the CO must authorize the contractor to proceed or terminate the contract for convenience.

Upon being presented with the results of Phase I the COR will review them and notify the CO whether they merit proceeding with Phase II. If the results do not merit proceeding the CO may either (1) direct the contractor in writing to take specified actions and present new Phase I results to the COR within a specified period of time, or (2) terminate the contract for convenience. 

Facts. Upon the early completion of Phase I the contractor presented the results to the COR. The COR found them to merit proceeding and sent the CO a memo report to that effect. However, the CO was on official travel status and could not read the memo or send a written authorization to proceed with Phase II immediately.

In this case, it was the COR’s role and responsibility to review the results of Phase I and notify the KO whether the results merit proceeding with Phase II .

“ The COR found them to merit proceeding and sent the CO a memo report to that effect.”

The KO had the contractual responsibility to act on the results and merit determination in a reasonably responsive timeframe [it would seem reasonable to assume this is to efficiently maintain progress and  and avoid time and cost impacts of delaying the action]:

“If Phase I is completed satisfactorily the CO must authorize the contractor to proceed or terminate the contract for convenience.”

In the scenario, the KO was unavailable and unreachable to perform her Contractual responsibility, which [likely] put the Government at risk for additional costs and possible disruption and time impacts.

In my option, the COR SAVED the Government additional costs that would have accrued and additional time that would have been incurred ,waiting for the KO to return to duty and [“must”] authorize the contractor to proceed.

Both the contractor and COR met their contractual responsibilities…

The COR acted to protect the Government’s interests and work with the contractor to facilitate efficient progress.

Phase II was NOT an option in the contract, it was a requirement, unless the KO would have decided to TFC the [“…fully-funded cost-plus-fixed-fee R&D contract for the conduct of a project. The project was to be conducted in two phases under a single contract lime item.”]

On 11/6/2024 at 9:47 PM, C Culham said:

So as you state four commenters in the thread, so who of the four was it directed at in your view?

For what it’s worth, I don’t believe anyone thinks that comment was directed at you or any other forum participant. Maybe read it again.

On 11/6/2024 at 6:46 AM, Retreadfed said:

I made the statement and it was not directed at Carl or anyone else at this forum.  It was merely an anecdote regarding the problem that sometimes arises in dealing with personnel outside the contracting profession, in that case Intergovernmental Personnel Act detailees.

Jamaal Valentine said:

For what it’s worth, I don’t believe anyone thinks that comment was directed at you or any other forum participant. Maybe read it again.

I take Retreadfed at his word and appreciate your view.   As it goes however I have a circle that views and participates in Forum and by my discussion it was confused as applying to me.

I am good and moving forward.  This one is a done deal.