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    Now 6 months later the issue was raised how do we correct this since the contract POP has passed, but services are still being provided. Is this a ratification, or is there another method to bilaterally revive the POP.


    Answer

    Based on the facts you have provided, we recommend that you contact your legal counsel and contracting officer.  Based the definitions in the FAR, it appears that you are dealing with an unauthorized commitment which will require ratification. Please also review the COR's Letter of Designation on what authorities the contracting officer has delegated to the COR.  I am attaching an interesting COFC case that discusses the potential perils of contractors working at risk when they ignore or don't understand who can bind the governmen.  https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2016cv1157-58-0.

    FAR 1.602-3 Ratification of unauthorized commitments.

          (a) Definitions.

         “Ratification,” as used in this subsection, means the act of approving an unauthorized commitment by an official who has the authority to do so.

         “Unauthorized commitment,” as used in this subsection, means 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.

     

          (b) Policy.

     

    (1) Agencies should take positive action to preclude, to the maximum extent possible, the need for ratification actions. Although procedures are provided in this section for use in those cases where the ratification of an unauthorized commitment is necessary, these procedures may not be used in a manner that encourages such commitments being made by Government personnel.

               (2) Subject to the limitations in paragraph (c) of this subsection, the head of the contracting activity, unless a higher level official is designated by the agency, may ratify an unauthorized commitment.

               (3) The ratification authority in paragraph (b)(2) of this subsection may be delegated in accordance with agency procedures, but in no case shall the authority be delegated below the level of chief of the contracting office.

               (4) Agencies should process unauthorized commitments using the ratification authority of this subsection instead of referring such actions to the Government Accountability Office for resolution. (See 1.602-3(d).)

               (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.

          (c) Limitations. The authority in paragraph (b)(2) of this subsection may be exercised only when-

               (1) Supplies or services have been provided to and accepted by the Government, or the Government otherwise has obtained or will obtain a benefit resulting from performance of the unauthorized commitment;

               (2) The ratifying official has the authority to enter into a contractual commitment;

               (3) The resulting contract would otherwise have been proper if made by an appropriate contracting officer;

               (4) The contracting officer reviewing the unauthorized commitment determines the price to be fair and reasonable;

               (5) The contracting officer recommends payment and legal counsel concurs in the recommendation, unless agency procedures expressly do not require such concurrence;

               (6) Funds are available and were available at the time the unauthorized commitment was made; and

               (7) The ratification is in accordance with any other limitations prescribed under agency procedures.

     

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