I.  Responsibilities of the Office that made the Unauthorized Commitment.

1.  [ ] The office that made the unauthorized commitment must provide a signed statement describing the circumstances that led to the unauthorized commitment. More than one statement may be necessary depending on the facts. The statement(s) must detail how the commitment occurred and should not be a generalized discussion about the requirement. Without a commitment, the action may not be a ratification.

2.  The statement(s) must also address the following concerns.

a.  [ ] Who was the person who made the commitment, and on what date?

b.  [ ] What bona fide Government requirement necessitated the commitment?

c.  [ ] Why were normal procurement procedures not followed?

d.  [ ] Did the Government derive any benefit from the goods or services received?

e.  [ ] What is the cost of the goods or services?

f.  [ ] Any other pertinent facts.

3.  [ ] Provide all orders, original invoices, and other documentary evidence of the transaction.

4.  [ ] If evidence of a commitment cannot be obtained (e.g. employees have left or lack of recall), a letter should be written to the company asking them why they performed without a contract. The response they provide may help determine whether the action is a ratification (i.e., direction by the Government) or a Quantum Meruit (i.e., no direction by the Government). Provide the documented contractor's response to the Contracting Officer for use in the D&F as outlined in subparagraph III.2. below.

II.  Responsibilities of the Supervisor of the Employee who made the Unauthorized Commitment.

1.  [ ] Provides to the Contracting Officer, an endorsement concurring that the commitment should be ratified. The endorsement includes the following information.

a.  [ ] Verifies the accuracy and completeness of the documentation.

b.  [ ] Describes the measures taken to prevent a recurrence of an unauthorized commitment within the command.

2.  [ ] Provides a complete purchase request and appropriate funding for ratifying the contract. Funding generally must be from the Fiscal Year in which the Unauthorized Commitment took place if such funds are available. Otherwise, currently available funds may be used. Consult local Counsel for funding questions.

III.  Responsibilities of the Contracting Officer.

1.  [ ] Review the documentation and endorsement to ascertain whether there are any doubtful questions of fact. There should be an unambiguous understanding of how the unauthorized commitment occurred.

2.  [ ] Prepare a Contracting Officer's Determinations and Findings (D&F). Conclusory statements that repeat the FAR are not enough; the D&F must stand on its own and follow the format of Introductory/Summary paragraph, a Facts/Background paragraph (that is, explaining what happened), an Analysis paragraph explaining how the FAR 1.602-3 criteria have been met, and a Recommendation paragraph, concluding the D&F with a request for relief.

3.  The D&F must address the following:

a.  [ ] The Unauthorized Commitment was not made to circumvent or evade procurement statutes and regulations.

b.  [ ] 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.

c.  [ ] The Ratifying Official has the authority to enter into a contractual commitment.

d.  [ ] The resulting contract would otherwise have been proper if made by an appropriate Contracting Officer. The Government was not otherwise precluded by law from procuring the supplies/services.

e.  [ ] The Contracting Officer reviewing the Unauthorized Commitment determines the price to be fair and reasonable.

f.  [ ] Payment is not for unallowable costs.

g.  [ ] The Contracting Officer recommends payment.

h.  [ ] Proper type of funds are available and were available at the time the Unauthorized Commitment was made. (The obligation is chargeable to the fiscal year in which the need arose and the work was performed as a result of the Unauthorized Commitment. Funding must be from the fiscal year in which the Unauthorized Commitment took place if such funds are available. Otherwise, currently available funds may be utilized.)

i.  [ ] The ratification is in accordance with any other limitations prescribed under local/regional procedures.

4.  [ ] Prepare a recommendation to the ratifying official and appropriate contractual documents citing funds available at the time the Unauthorized Commitment occurred.

5.  [ ] Forward the package to local Office of Counsel for opinion and comment.

6.  Ensure the ratification receives the required level of review and approval; further document the contract file.

I.  The Contracting Officer shall ensure the action is a Quantum Meruit, specifically, there was no Government inducement for contractor performance; otherwise, the action could be an unauthorized commitment/ratification situation. The contractor's performance should have been voluntary without Government direction to perform without a contract.

1.  [ ] Obtain a written statement from the office that received the voluntary services without a contract. The statement(s) should detail the circumstances that led to contractor performance without a contract. There could be multiple statements depending on the facts and employees involved.

2.  [ ] Obtain any correspondence or e-mail that pertain to how the services were provided without a contract and/or what led to a lapse in contract coverage.

3.  [ ] Obtain a statement from the contractor that explains the company's knowledge/understanding regarding a lack of contract, and why the contractor, especially if knowledgeable in Government contracting, performed/allowed performance without a contract. The contractor's claim can suffice if it also answers these questions in full. (See also section IV. of this checklist for explanatory detail of the contractor's claim.)

4.  [ ] Consult local Office of Counsel after obtaining all information to help determine whether the circumstances warrant further processing as a Quantum Meruit.

II.  Justification. The Contracting Officer shall ensure that the Quantum Meruit package contains a written justification, which should include the following information.

1.  [ ] An introductory/summary paragraph, which provides a brief overview of the Quantum Meruit claim.

2.  [ ] A facts/background paragraph, explaining in detail how the lapse in contract coverage occurred. Include factual information regarding the knowledge of the Government employees involved and also what led to the contractor performing without a contract. Include relevant dates of the various events as outlined in this section. Ensure the facts support that the criteria for Quantum Meruit been met. The justification must explain how the following criteria are met, and not simply re-state the criteria.

a.  [ ] The goods or services would have been a permissible procurement had correct procedures been followed;

b.  [ ] The Government received and accepted a benefit;

c.  [ ] The contractor acted in good faith; and

d.  [ ] The amount to be paid represents a reasonable value of the benefit received.

3.  [ ] An analysis paragraph explaining how the Quantum Meruit criteria above have been met given the facts that have been outlined.

4.  [ ] A recommendation paragraph, concluding the Justification with a request for relief.

5.  [ ] Corrective action. The justification must address, with supporting documentation, the corrective action taken/proposed by supervisor/commander to prevent recurrence. Address both individual corrective action and systemic corrective action. No personnel disciplinary action should be detailed in the file as this is Privacy Act protected.

6.  [ ] The Contracting Officer signs the justification, with the package being forwarded to DLA HQ Acquisition Operations Division (J72), after coordination through the contracting activity's chain of command, including local Office of Counsel. Ensure that attachments cited in section I of this checklist (i.e. outlined above) are in the package.

IV.  [ ] The Contracting Officer shall ensure that there is a claim from the contractor. This must be included as an attachment as well as summarized in the Justification. Invoices are not claims, but should be in the file. The contractor also needs to state why it performed without a contract, why and under what theory it believes it is entitled to relief, and why its performance without a contract meets the good faith test. Ensure the contractor's and their counsel's (if applicable) address and contact information are in the file, as a notice and determination is sent to them from the CAE.

V.  [ ] Funding. The Contracting Officer shall ensure that funding is obtained. Funding generally must be from the Fiscal Year in which the quantum meruit took place if such funds are available. Otherwise, currently available funds may be used. Consult with local Counsel for funding questions.

VI.  [ ] Package Routing. The Contracting Officer shall ensure that once the package is complete, local review and approvals are obtained and that the package is sent to DLA HQ Acquisition Operations Division (J72), for processing and review, then signature by the CAE.