Contracting Officers must validate Contracting Officer Records and Ordering Officer Records every 12 months to ensure compliance with the terms of the contract. A written record of the review is to be placed in the contract file.
(a) (i) Except as authorized in FAR Subparts 17.1 and 32.7 and in (ii) and (iii) below, before issuing a solicitation, the contracting officer must have a written statement (or equivalent) indicating that sufficient funds are available.
(ii) Solicitations may be issued for high priority requirements and Research, Development, Test and Evaluation (RDT&E) incrementally funded contracts before ensuring availability of funds when there is a high probability that the requirement will not be canceled. For foreign military sales (FMS) cases, solicitations may be issued after the submission of an offer from the FMS customer country, but before assurance of funds availability when the United States Army Security Assistance Command determines in writing that the offer appears certain to be accepted.
(A) The contracting officer shall not issue a solicitation under the circumstances in (a) (ii) unless the comptroller or designee has signed the following statement on the purchase request:
“This requirement is included or provided for in the financial plan for fiscal year ______. The accounting classification will be _______. This statement is not a commitment of funds.”
(B) The contracting officer shall include the following statement in all solicitations issued pursuant to this authority when the clause at FAR 52.232-18, Availability of Funds, is not used:
“Funds are not presently available for this acquisition. No contract award will be made until appropriated funds are made available.”
(C) No contract shall be awarded nor shall a prospective contractor be notified of a pending award until funds have been certified to be available by the operating official designated by local regulations or by a “delegation of authority” letter as the official authorized to certify to funds availability.
(D) No solicitation shall be issued for a contract for research and development which is to be incrementally funded over successive years unless planned funds (Future Years Defense Plan (FYDP)) are sufficient to accomplish it. An exception may be approved by the HCA, provided the approval identifies steps to be taken to revise the approved FYDP to include adequate resources.
(iii) Industrial-funded public activities need not comply with (i) and (ii) when issuing solicitations to support offers they will send under the Defense Depot Maintenance Competition Program (Pub. L. 102-396), the Partnership Program (10 U.S.C.2208 (j)) or competition under the Arsenal Act (10 U.S.C.4532(a)).
[AFARS Revision #21, dated May 22, 2007]
(c) Legal participation. Contracting Officers’ use of legal specialists shall be guided by the following:
(i) Legal counsel shall participate as a member of the contracting officer’s team throughout the acquisition process.
(ii) Legal counsel shall review proposed contracting actions in accordance with locally established procedures and as otherwise required by law, regulation, or policy. While it is not practicable to specify, in the AFARS, an inclusive list of actions requiring legal review at each contracting activity, the expectation is that counsel shall routinely review a full range of acquisition-related actions that have potential legal significance. PARCs and chief counsels shall develop specific legal review protocols that are consistent with this provision.
(iii) Legal counsel shall advise whether a proposed action is legally sufficient with details and a recommended course of action to resolve any insufficiency. Contracting officers shall address and resolve counsel’s objections at the lowest possible level. Unresolved objections shall be jointly elevated within the acquisition and legal channels, and, in exceptional cases, brought to the attention of the HCA.
(iv) Legal sufficiency shall relate to areas of statute, regulation, and policy. The Contracting Officer retains sole authority to determine matters that relate to the exercise of business judgment. [AFARS Revision #21, dated May 22, 2007]
(i)(A) A properly trained COR shall be designated in writing prior to contract award. At a minimum, CORs shall complete the DAU online course CLC 106, CORS with a Mission Focus prior to designation. Additional training may be specified by individual PARC organizations.[AFARS Revision #25, Item II, dated April 1, 2010]
