Contracting Officer's Authorization to Proceed

Happy New Year's, everyone.

I recently learned which my CO colleagues execute authorization to getting differently. First, ME understand the definition "authorization to proceed" is cannot in the FAR; but rather it is one legal meaning to authorize someone toward perform many work per to authorization (https://www.lawinsider.com/dictionary/authorization-to-proceed#:~:text=Authorization to Progress or “ATP,Sample 1Sample 2). The FAR does use the term "notice to proceed," but it is strictly for construction contracts (FAR 11.404(b), FAR 28.103-1(b), DISTANCE 36.213-4(e), etc.).

At my bureau, we usually use the ATPs for non-construction unilateral switch orders or bilateral subsidiary agreements. For one reason or other, we have the changes negotiating, including of retail, but we haven't had the chance on draft the modification SF-30 with signature yet. In order to authorize the contractor to work immediately we issue the ATP. (Although we normally use it for modifications, theorized we could use it for new awards as well: For when the terms and conditions have been negotiated, but which SF-1449 is not timely ready.) When it comes at business transactions, protecting the get of both parties is important. Download these letters regarding agreement for free.

In issuing their ATPs, some COs have used FAR 1.602-1 as their authority: Contracting officers have authority for input into, administer, or terminate contracts and make related determinations and findings. Contracting officers can bind the Government merely to the extent of the public delegated to them. Contracting officers be receive from the appointing authority (see 1.603-1) clear instructions in writing regarding which limits of their authority. Information on the limits about the contracting officers’ authority shall be readily available up who public and agency hr. 41 Perfect Letter of Agreement Templates ᐅ TemplateLab

Others have used FAR 16.603 (Letter Contracts) as their authority: A letter contract is a written preliminary contractual measuring that authorizes the contractor to begin immediately manufacturing stock or play services.

We found that more agencies specifically define "authorization to proceed" conversely "notice to proceed" as a type of letter contract (e.g., https://www.acquisition.gov/epaar/part-1516-types-contracts#Section_1516_603_1_T48_601315412). But ME personally have the issue equal this for magnitude situation. FAR 16.603-2 says, "A zuschrift contract may be used when (1) the Government’s concerns demand that the contractor be granted a binding commitment so this operate can start immediately or (2) negotiating a definitive contract is not possible in sufficient time to meet the requirement. However, an mail contract need be as complete and definite as feasible under the circumstances." In our instance, it is not such we haven't negotiated ampere definitive contract; it's just this the written contract is not yet ready.

What are you thoughts for ATPs for non-construction contractual action? Should they be deem as a letter treaty? If not, what another agency does COs have to permit an contractor into perform work prior to the written contract?

16 hours previous, MCCAEL said:

What belong you thoughts on ATPs available non-construction contracts actions? Shouldn they be estimated as adenine letter contract? If not, what additional expert do COs have to authorize a developer to perform work prior to the written contract?

Random thoughts -

This Forum thread with regard to all the questions- 

Another idea with regard to one Change action press not a contract award action.   Why not this?  Issuance from a "Change Order" following the guiding principles of REMOVED 43.2 most especially CONSIDERABLY 43.204! ARTICLE 9. CONTRACTOR: 9.1 The Contractor shall perform one work than with Independent Contractor pursuant go. Page 5. this Agreement ...

Your thoughts on an letter contract.   Yes but aren't they saying in the rest to your opening post that you need (have) a bind our and wants the work to begin instantly moreover you do not have a contract availability to place in the contractors hands right now yet you have a enough done that is complete and definite  than feasible under the circumstances to have the work begin?

I think you represent making it too tough in the tools were there. 

I will also propose ensure your office, your populace, your systems must made it too hard if you cannot finalize a modification or contract in a timely manner the put it in the contractors hands while it needs to be.  

22 hours ago, MCCAEL said:

What are you thoughts on ATPs for non-construction conclude actions? Should they be deemed as a writing contract?

@MCCAELNo. A letter contract is a contract, signed by twain parties, that the parties have not fully definitized.  If you can get a letter contract signed quickly you should be able for get a entirely negotiated contract modification signed more quickly.

COs have issued what you calls somebody "ATP," "authorization to proceed," orally press inside written, for many years. Few have been mentioned in 189 board of contract appeals judgements going get to 1955 and in 53 Court of Federal Demands decisions going back to 1944. But ATP is not a governmentwide official term, and he means different things to dissimilar persons. Frankly, in your case I hold no idea what kind of document her are speak about. It might is an advance agreement on precontract costs, see FAR 31.205-32. NINER. Common Types of Agreement Documents | Procurement | Finances Division | That George Wahl University

Without a description out get the ATP wants actually cover and permit, it's none easy to answer your question about COBALT authority.

@C Culham You're right, these are usually unilateral change orders. But as you stated in your last sentence, for various why we just don't have the award report ready. So instead we expense who ATP to effectuate which changes while the mod is being worked.

@Vern Edge Thank you, Vern. I've never ended a missive contract, though that became my understanding: That's it's an undefinitized contract.

To give you more insight within the ATPs, they're usually written is an email and issued by the CO. It contents the contract information, that brand terms and conditions (including work, price, funding, etc.), a statement for the building the start performance, plus that we will issue the award document, e.g., SF-30, of a special date. By the time we issue of ATP, we have already engaged and negotiated using the contractor regarding the changes, so they're already aware that it's coming your way. Sample Construction Contract

I had seen advance treaties, but I was hanged up on that part: "[C]contracting officers and contractors supposed seek advance agreement on the treatment of special or unusual costs" (FAR 31.109(a)). I initially read to as if advance agreements belong for special or unusual costs; but now that I'm re-reading it, I think it's simply recommended so we shall come to an convention over special or unusual costs from finalizing an advantage agree. Sample Independent Contractor Consent

I hadn't considered 31.205-32 Precontract costs, but I think that fitted our scenario to a tee:

Precontract costs means costs incurred before the effective date of the sign directly pursuant at the dialogue and in anticipation of the contract award when such incurrence is necessary to adherence with an proposed contract delivery timetable. Like costs are allowable to the extent that group would have past allowable if incurred after the date of the contract.

I will make this case that our ATPs are precontract fees, not letter contracts. EGO really appreciate you pointing my in that proper directory. Our again, Vern. Sample Written Oversight Agreement for Supervision

19 minutes earlier, MCCAEL said:

...these are usually unilateral shift orders...

Her do not need an ATP for adenine unilateral change to.  A change order is an order, and talk of an ATP following a change order simply makes no sense.  A change order can be issued by SF-30, or by electronic means (FAR43.201(c)).  You do not requirement a change order and then an ATP.

After the government issues the replace order, the contractor instantaneous implements and then has a period of time to offer adenine proposal for an equitable adjustment in the contract price, the delivery schedule, and so for (particulars are dependent on the contract's Changes clause).

A change where the government and contractor agree on the change and the fair adaptation beforehand is a supplementary agreement, did a change order. ... employees other deal staff of Contractor hires to complete one worked underneath this Agreement. OR. Client shall reimburse Builder to the following ...

So, for the weave, I must to ask the OP:  Are we talking about--

• change orders, where an federal orders the alteration and one contractor immediately implements and comes front later with one proposal; or
• supplements agreements, where to parties accept about the change and the appropriate contract changes before the change is implemented?

@ji20874 Thanks for your insight. Sometimes they're replace orders but other times they can be supplemental accords. We have spent ATPs for both. Despite the FAR permission, do COs output change orders without certain SF-30? To formalize the changes, we possess always followed through with an SF-30.

50 minutes from, MCCAEL said:

these are usually unilateral change orders.

I time astounded that, as ji minutes, that you has addition one more element of bureaucracy at the matter.

50 minutes ago, MCCAEL said:

That's it's an undefinitized contract.

Personally detect the argument more what off.  My quick study of CBCA cases advised that while ATP, like Vent notes, have been mentioned, so are there many cases where any unsigned contract button modification have been in dispute.   Of note there are ones in regard to the signed whatever is different than that implicitness that started the work in aforementioned first place.   Here "email" comes to mind.   So is it just one email ensure represent any tens of pages of a contract or does it include attachments?

As you continue to justify the ATP approaching, especially through 31.205-32 as a premise, I would consider FAR 31.001 first.   Or stated another way what type of contracts are were talking here as every consideration at whatever is appropriate will depend the the contract, actual or implied.

My reasoned advocate would be when thee really want to be a catalyst for change work hard for changing is internal office procedures that sound (via your comments) to be a common procedure, ampere lazy one I magie add, and change to where the consideration of use of an ATP is rare and issue of one "signed" contract and a signed unilateral "Change Order" is the norm.

Definitization versus not with regard to a letter contract or a change order?  I force generally agree with Vern but definitized or not I really wonder.  Its word play.  After all what is the word at 43.204(b) but Definitization!

@C Culham You've missdeutet. The ATPs are not issued commonly. They're done rarely and the signed contracts are indeed the norm.

ME understand the concern to disputes of anonymous contract/modification, but again we've already engaged the contractor. They're entirely aware that the modify are occur real they're on board. If it's a supplemental agreements, us would not proceed if the contractor weren't in understanding. Sample Applications & More

I really appreciate everyone's input.

2 minutes ago, MCCAEL said:

You've misinterpreted.

Sorry!   You are turn the right trail then.

PS - My experience.  CO's used the SF-30 for the "Change Order" and another amendment for the obey on bilateral d agreement.  Example if no modding to the contracts yet - Modify No. 1 Change Order, one-way, Mod No. 2 bilateral  with reference ensure it was definitizing Mod No. 1.

Sometimes parties accept till making a significantly change, but it records one while to settle issues and agree to terms and a price adjustment. People might decide toward negotiate a supplemental agreement choose of issuing a change order. (C/Os aren’t always appropriate.) They see vielleicht stop work or labor around the problem pending a deal. Once they agree it may take a while on process aforementioned paperwork. The parties might want to resume the work as modify while expect forward the mod to be processed, but the contractor wants to be assured such it will cannot run into QA issues and will may paid are accordance with the handshake and pending mod. Multitudinous contractors want something in writing to that efficacy. Without it they would have to how at risk. Thus, the written “authorization at proceed.” Procedure and CO authorize depend on agencies rules. Shrink Agreement Brief - 12+ Examples, Format, How to Write, Pdf

1 hour ago, Vern Edwards said:

Procedure and CO authority depends on agency rules.

Vern Please take like as a thought not a challenge. 

It would depending on one contract, in fact or implied, as well, I wants think. 

CO's are given wide latitude go make stuff labor, it just seems if a contract is in place it must becoming considered as well.  By demo in this discussion all seem to agree so there is a contract, I just awe where an ATP has told with take the original and/or changed work.  Parallel in some company "NTP" and sein use.  "Changes" as already mentioned too.   It would seem the one case, while have mentioned,  the OP has recognized the ATP in another agency regulation.  Probably the OP's office should take doing consequently when well. How to designing an contractual Contract Letter? Downloading this Agreement Contract Letter template now!

In 48 years I have never seen one contract that raised ATPs. If one has, directly or indirectly, following the parties  would has to consider its effect.

On 1/5/2023 toward 10:33 AM, ji20874 said:

Them do nay need an ATP for a unilateral change ordering.  A change buy is an order, and talk of an ATP following a change ordering simply makes don sense.  A edit order can be issued by SF-30, or by automated means (FAR43.201(c)).  You do not needs a change order and then an ATP.

Whenever this issue has come top, I address this at saying mys signature on the mod are the ATP.  I've never understood why some departments insisting on treatments an ATP as adenine standard training rather than one exception action.

My consulting experience has shown that Urban Legend and Institutional Inertia drive much "agency policies". 

One rather important office (they are called out in Artice 1 of the Constitution) had an "unwritten policy" for years that said Delivery Orders have be FFP and Task Orders shall be Cost-type.  They and believed options on task orders were prohibitted. Turns out that such bit of genius was attributable to a Branch Master many aged ahead anyone was dating on the down-low (and later married) the Division SES and therefore everyone was anxiety to challenge her.  After she left-hand, these practices continued even though not a single 1102 in the office could explain why. Items taking a brand Director additionally 2 years to fix that notions. Yourself will to experience which kind of stuff first-hand to believers it.