Due to vendor delays in returning the signed contract, the Contracting Officer signed the contract two days after the beginning of the period of performance. Is this allowed and where can I find the authority to allow verbal authorizations to start work.
Contract formation includes – Offer, Acceptance, and Consideration.
Open full Question Details
Once a bid or proposal is chosen for award, the contracting officer generally sends a SF26 or SF33 to the contractor for their signature (their signature constitutes the contractor’s offer to the government) once it’s received by the contracting office, the contracting officer signs it (this constitutes acceptance) and the contract is formed if consideration passes between the parties. A completed copy is provided to the contractor. So technically, until both parties sign the form, there isn’t a formal contract and no start of the period of performance (PoP).
This action however, might be considered an implied-in-fact contract which requires; “(1) A meeting of the minds between the parties; (2) consideration; (3) an absence of ambiguity surrounding the offer and the acceptance; and (4) an agency official with actual authority to bind the government.” (Contract Attorneys Deskbook 2018)
Here, it appears that the contracting officer (with the appropriate warrant authority to bind the government) may have verbally directed the contractor to begin work at the time of the intended PoP start (when the contractor signed the form), and before the contracting officer received the signed copy of the form and signed it; the contractor agreed to perform and there was a ‘meeting of the minds’ and the subsequent contract was signed by the contracting officer (two days later).
It’s recommended that you contact your local legal representatives concerning this action, since agency or local procedures may also address this issue.