48 C.F.R. § 1.602-3

1.602-3 Ratification of unauthorized commitments.

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(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 subparagraph (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.

(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.

(d) Nonratifiable commitments. Cases that are not ratifiable under this subsection may be subject to resolution as recommended by the Government Accountability Office under its claim procedure (GAO Policy and Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 2), or as authorized by FAR Subpart 50.1. Legal advice should be obtained in these cases.

[53 FR 3689, Feb. 8, 1988, as amended at 60 FR 48225, Sept. 18, 1995; 71 FR 57380, Sept. 28, 2006, 72 FR 63029, Nov. 7, 2007; 79 FR 24195, Apr. 29, 2014]

Notes of Decisions

Cited in 11 cases (1 in the last 5 years), 1989–2023 · leading case: Horn & Assocs., Inc. v. United States, 104 Fed. Cl. 121 (Fed. Cl. 2012).

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Horn & Assocs., Inc. v. United States, 104 Fed. Cl. 121 (Fed. Cl. 2012). · cites it 5× “57, 64 (1999); see also 48 C.F.R. § 1.602-3 (2012), “Ratification of unauthorized commitments (Nov.”

Gary v. United States, 67 Fed. Cl. 202 (Fed. Cl. 2005). · cites it 2× “” 48 C.F.R. § 1.602-3 (a). An “unauthorized commitment” is defined 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.”

Miller Elevator Co. v. United States, 30 Fed. Cl. 662 (Fed. Cl. 1994). “Sisk continued to require work without written authorization, even after the transmittal of these documents. Therefore, despite these three documents, the GSA continued to allow extra work under the direction of Mr.”

Liberty Ammunition, Inc. v. United States, 119 Fed. Cl. 368 (Fed. Cl. 2014). “202, 215 (2005) (quoting 48 C.F.R. § 1.602-3 (a)); see also Schism v.”

Green Mgmt. Corp. v. United States, 42 Fed. Cl. 411 (Fed. Cl. 1998). “See 48 C.F.R. § 1.602-3 (1998) and J. Cibinic, Jr.”

City of El Centro v. United States, 17 Cl. Ct. 794 (Ct. Cl. 1989). “The original FAR did not contain any similar provision; indeed, no like provision appeared in the FAR until February 1988 when 48 C.F.R. § 1.602-3 (“Ratification of unauthorized commitments”) became effective.”

Aero-Abre, Inc. v. United States, 39 Fed. Cl. 654 (Fed. Cl. 1997). “…procedures, but in no case shall the authority be delegated below the level of chief of the contracting office.” 48 C.F.R. 1.602-3.”

Panther Brands, LLC v. United States (Fed. Cl. 2019). “”) (emphasis supplied). And Guard policies set forth a specific process governing how a CO may ratify unauthorized commitments made by a COR.”

Tamara Williams v. Dep't of Vets. Affairs (MSPB 2023). “48 C.F.R. § 1.602-3 (b). Therefore, the appellant has not made a nonfrivolous allegation that she reasonably believed the agency committed any wrongdoing with respect to an unauthorized commitment.”

The Anti-Deficiency Act Implications of Consent by Gov't Employees to Online Terms of Serv. Agreements Containing Open-Ended Indemnification Clauses (OLC 2012). “” 48 C.F.R. § 1.602-3 (b)(2) & (c)(3) (2010); Dep’t of Commerce, Commerce Acquisi- tion Manual 1301.”

Online Terms of Serv. Agreements with Open-Ended Indemnification Clauses Under the Anti-Deficiency Act (OLC 2012). “” 48 C.F.R. § 1.602-3 (b)(2), (c)(3) (2010); Dep’t of Com- merce, Commerce Acquisition Manual 1301.”

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