Architect of the Capitol--Contract Ratification
B-306353: Oct 26, 2005
- Full Report:
The Architect of the Capitol may use appropriated funds to pay a contractor for services rendered pursuant to an unauthorized commitment. The Architect of the Capitol's actions subsequent to learning of the unauthorized commitment constitutes a valid ratification. See generally B-259926, Mar. 31, 1995; B-251728.2, June 9, 1993.
B-306353, Architect of the Capitol--Contract Ratification, October 26, 2005
The Architect of the Capitol may use appropriated funds to pay a contractor for services rendered pursuant to an unauthorized commitment. The Architect of the Capitol's actions subsequent to learning of the unauthorized commitment constitutes a valid ratification. See generally B-259926,
The Architect of the Capitol (AOC) has requested an advance decision under 31 U.S.C. sect. 3529 on whether it may use appropriated funds to pay a contractor for construction performed pursuant to directives issued without authority by an AOC employee. Because AOC validly ratified the unauthorized directives, it may use appropriated funds to pay the costs of the construction performed under those directives. See generally B-259926,
AOC is responsible for the maintenance and improvement of the U.S. Capitol Grounds. 40 U.S.C. sect. 5102. Pursuant to this responsibility, AOC is expanding the West Refrigeration Plant near the Capitol. The general contractor for this project is Hitt Contracting, Inc. (Hitt). Letter from Alan M. Hantman, Architect of the Capitol, to David Walker, Comptroller General of the
Hitt, believing the directive letters to be authorized, began the requested work. Telephone interview with Cynthia Bennett, Director of Procurement, AOC,
AOC asks whether it may properly use appropriated funds to pay for the work performed by Hitt pursuant to the directives.
It is axiomatic that the
Nevertheless, it has long been recognized that an authorized government official possessing knowledge of the facts may give effect to an unauthorized act of another government official by subsequently ratifying the action.
This traditional ratification rule has been modified in the federal arena by statute and regulation. The majority of government procurement actions are governed by title 48 of the Code of Federal Regulations, the Federal Acquisition Regulation (FAR). However, as a legislative branch agency, AOC is not subject to these rules. See 48 C.F.R. sections 1.101 and 2.101 (2004); B-289867,
When AOC discovered the unauthorized commitments made by its employee, it quickly suspended the work being done by Hitt in order to ascertain the underlying facts. Bennett Interview 1. Having determined the scope of the work ordered by the directives and the approximate cost involved, AOC's Director of Procurement, vested with contract authority, executed Contract Modification 36.
Contract Modification 36 was also a valid ratification under the FAR. The FAR's requirements for ratification are found at 48 C.F.R. sect. 1.602-3(c). The FAR provides that an agency may ratify an unauthorized commitment 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 could have granted authority to enter or could have entered into a contractual commitment at the time it was made and still has authority to do so;
(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.
AOC's actions subsequent to learning of the directives meet these criteria. See generally B-259926,
AOC may use appropriated funds to pay the costs incurred under the directive letters, because Contract Modification 36 represents a valid ratification of the unauthorized commitments.
Anthony H. Gamboa
 In the past we have looked to the FAR for instruction regarding a ratification undertaken by a judicial branch agency, which likewise was not subject to the FAR. B-251728.2,
 The work ordered by the directives was within the scope of the original contract. Hantman Letter, Attachment 1.
 When AOC ordered Hitt to stop work, it told Hitt not to resume until a contract modification was signed authorizing resumption. Telephone interview with Cynthia Bennett, Director of Procurement, AOC,