13.1 Defined
A claim outside a contract is a demand or request for payment from a person who, at the direction of a County employee, has furnished goods, services, or construction to the County outside a contract. This may occur when:
13.1.1 goods, services, or construction was accepted without the award of a contract;
13.1.2 performance was accepted under a contract without a timely certification of available funds;
13.1.3 performance by a contractor was outside the scope of the contract and was accepted; or
13.1.4 goods, services, or construction was provided after the expiration of the contract, but otherwise in conformance with its terms and conditions.
13.2 Policy
Claims outside contracts are not encouraged and must be avoided, whenever possible, by the Using Departments. However, a procedure is necessary to provide for fair compensation to a person who has provided the County with a benefit outside a contract. This procedure is discretionary and does not create any rights to payment to the person unless the claim is approved by authorized County officials. This procedure must not be utilized by the Using Departments to circumvent the requirements of these regulations.
13.3 Approval Requirements
13.3.1 If circumstances under 13.1.2 exist, the Director may approve a claim outside a contract after determining that sufficient funds have been encumbered to defray the cost of the performance under the contract. Once this determination has been made, the contract is valid and payment may be made, if otherwise due under the contract. The Using Department Head must submit a memorandum to the Director (1) requesting approval; (2) explaining why funds had not been encumbered; and (3) describing what steps the Using Department has taken to avoid a similar claim in the future. A Using Department Head must execute this memorandum.
13.3.2 Before any other claim outside a contract is approved, a Using Department must submit the following to the Office of the County Attorney:
13.3.2.1 A statement of all facts demonstrating that the County directed the person to proceed with performance, including the identity of every employee who directed the person to proceed;
13.3.2.2 A statement of all facts demonstrating that the person relied upon the direction of a County employee;
13.3.2.3 An analysis of the work performed and the benefit received, which must include a certification that the claim represents a fair and reasonable value including all facts that support the certification;
13.3.2.4 An explanation of the reason why the goods, services, or construction was not provided under a contract and a statement of actions taken or a plan to assure that this type of claim will not occur in the future;
13.3.2.5 A statement of any additional facts that indicatewhy the person is entitled to payment of the claim;
13.3.2.6 A written invoice; and
13.3.2.7 A proposed release, contract, or contract modification that makes the performance rendered by the person subject to all applicable mandatory clauses, and releases the County from any further claim.
13.4 Procedures for Approval
13.4.1 A Using Department must submit the information required in Section 13.3.2 to the County Attorney for review and action.
13.4.1.1 If the claim outside a contract is $10,000 or less, the County Attorney may approve the claim outside a contract in writing and return it to the Using Department which is responsible for processing the claim outside a contract approval for payment.
13.4.1.2 If the claim outside a contract is in excess of $10,000, the County Attorney may approve the claim outside a contract subject to approval of the CAO. If the County Attorney approves the claim, the County Attorney must submit a recommendation for approval to the CAO, in writing, together with documentation received from the Using Department.
13.4.1.3 If the County Attorney rejects a claim outside a contract, the County Attorney must state the reasons for the rejection in writing and return the documentation to the Using Department. The Using Department may resubmit the claim outside a contract to the County Attorney with additional information as requested or other information the Using Department may elect to submit.
13.4.1.4 If the County Attorney requests further information, the Using Department must furnish the requested information as expeditiously as possible.
13.4.2 After receipt of the claim outside a contract together with the County Attorney’s approval, the CAO may approve or reject the claim in writing and return all documentation to the Office of the County Attorney. Upon receipt of the copy of the original memorandum (without attachments) from the Using Department, the CAO may take any appropriate action to avoid future claims.
13.4.3 If approved for payment, the Using Department is responsible for processing payment of the claim outside a contact subject to any conditions imposed by the County Attorney or the CAO.
13.5 CAO and County Attorney’s Approval Authority
Notwithstanding any provisions of this Section or these regulations, the determination of the validity of the claim outside a contract is made in the sole discretion of the County Attorney and the CAO, as provided in the Montgomery County Code.