Confirming Order

A confirming order is a contract or purchase order issued after goods or services have already been delivered, or after work has already been performed. It records an agreement that was made without a properly authorized procurement vehicle in place. In Canadian federal procurement, it is a after-the-fact document, not the product of a normal competitive solicitation or contract award.

Public Safety Canada describes confirming orders as cases where a formal procurement vehicle was not sought or put in place by an appropriately delegated individual, even though an agreement was made and performance took place. NATO uses the same term in an operational sense: a purchase order that confirms an emergency order already placed.

How PSPC treats confirming orders

Public Services and Procurement Canada (PSPC) states that it does not normally place contracts merely to confirm actions a department or agency has already taken. It also says the practice should be discouraged to the maximum extent practical. The guidance is published on CanadaBuys.

PSPC buyers evaluate each request for a confirming order according to its circumstances. If a request is intended to circumvent normal procurement procedures, PSPC can return or reject it. Federal guidance links the practice to legal, financial, fraud, compliance and supplier-payment risks, which is why it is treated as an exception.

What a confirming order contains for completed work

Where the work is already complete, PSPC Legal Services prepares the confirming order. According to the PSPC buyer's guide, the document carries only the essential transaction information:

• the parties to the transaction
• the work performed
• the relevant dates
• the amount
• a release
• where necessary, a transfer of intellectual-property rights

A confirming order processed by PSPC requires approval at the director level or higher. The level depends on the contract value and the applicable non-competitive contracting approval limits.

Work that has started but is not finished

A confirming order is not the tool for work still in progress. When work has begun but is not complete, PSPC guidance requires a contract that covers only the improperly authorized work that remains. The award date of the written contract is the start date. The contract cannot be backdated or made retroactive, and it must include a pre-contractual-work clause.

This distinction separates a confirming order, which documents completed work, from a contract for ongoing work, which takes effect on the day it is awarded.

How confirming orders appear in records and contract dates

Confirming orders show up in federal proactive-disclosure contract data. A Public Prosecution Service of Canada record notes "Confirming order - Guard Services" in its additional comments. Records for the Administrative Tribunals Support Service of Canada identify confirming orders for audiovisual equipment rental and translation services.

Treasury Board guidance on contract dates says the contract date for a confirming order should generally be the date of the verbal contract for the goods, services or amendment. If that date cannot be determined, the date the confirming order was issued can be used. The rule is set out in the Treasury Board guidance.

NATO's Procurement Manual requires staff who create an emergency confirming purchase order to mark it "confirming order". The order must also include clear supplier instructions to prevent duplicate deliveries.

What a confirming order means for suppliers

The Canadian guidance is written for government buyers and does not set out a general supplier procedure. Several points still bear on suppliers who receive one:

• A confirming order documents goods or services already provided. It is not a reason to deliver or invoice a second time.
• For completed work, the order can include a release and an intellectual-property transfer. Suppliers should read and execute those terms before signing.
• For work still underway, the supplier relies on the properly issued written contract for the remaining work, which starts on its award date.
• Suppliers should not start work on a verbal instruction alone. Confirming orders are discouraged, and PSPC can reject a request.