09.09 Ex post facto

Retroactive and post facto approval of contracts is not a procurement process; rather, it is an administrative procedure that allows for review and possible ratification of actions that were not undertaken in full compliance with the review and award of contract processes outlined in this Procurement manual.

A retroactive or post facto situation occurs when a commitment either has been made by UNAIDS or existed de facto before an award of contract.

Responsibility and accountability for such actions remain with the submitting unit, irrespective of subsequent approval.

A contract award must take place before any commitment is entered into by UNAIDS (e.g. before signing a contract for services or placing an order for equipment).

Applicability of the WHO Financial rules and regulations

The Financial rules and regulations of the World Health Organization stipulate that services or works are not to commence, and goods are not to be ordered, until a contractual obligation between UNAIDS and the entity has been established with the signatures of both parties to the contract.

Every effort must be made to avoid a situation whereby services or works commence and goods are ordered before establishment of a contract.

Retroactive cases

A retroactive case is a situation where the goods have been ordered or the provision of services has commenced, but the goods have not yet been delivered or the services have not been rendered.

In some cases, invoices have already been submitted. Proper award of contract did not take place and no contract has been issued by UNAIDS (or a contract may have been issued incorrectly).

Post facto cases

A post facto case is a situation where the services have been rendered and goods have been received and, in some cases, one or more payments may have already been made; proper award of contract has not taken place, however, and no contract has been issued by UNAIDS (or a contract may have been issued incorrectly).

Approval of contracts and payments against retroactive and post facto contracts

All UNAIDS personnel are expected to make every effort to avoid retroactive or post facto cases. When they do occur, approval of the Global PRC is required before related payments are made or, if they have already been made, for such expenditures to be accepted by UNAIDS as legitimate charges against the appropriate budget line(s).

The responsible officer with the endorsement of the respective Department Director must prepare a memo to the Director of Planning, Finance and Accountability Department (PFA) for a contract value less than US$ 100 000. For a contract value of US$ 100 000 and above, the memo must be prepared for the Global PRC, with copy to PFA. This memo must explain all relevant circumstances.

FRC maintains a record of all retroactive and post facto cases.

It is important to bear in mind that any irregularity in the procurement process identified in the retroactive/post facto review may lead to administrative sanctions or disciplinary action. 

It also must be understood that the approval of the Global PRC or Director PFA (if it is given) does not constitute—and must not be taken as—the establishment of a precedent or justification for not taking timely and appropriate action(s) in compliance with the Financial rules and regulations and established procurement procedures.