Claim from an Unauthorized Commitments

(legacy post)

See FAR 1.602-3(b)(5).  It was probably improper to handle this as a ratification in the first place -- rather, it should have been handled as a dispute from the beginning.  But that water is already under the bridge.

Now, you have a claim, so now you do what the Disputes clause says.

ji20874 said:

Now, you have a claim, so now you do what the Disputes clause says.

Yes, make your decision.

here_2_help said:

Yes, make your decision.

But please don't let the notion that the Government received a benefit drive your decision in the contractor's favor.

1102, talk to your lawyer and get advice concerning quantum meruit and quantum valebat.

1102allday said:

So we had a COR commit an unauthorized Commitment.  Had the COR followed the proper procedures the unauthorized commitment would have been avoided.  The CO recommended that it should have been paid but the powers to be denied the ratification.  I think Deputy wanted to make a point but not sure about his rationale but now I have a claim under the disputes clause since the ratification was denied to pay the invoice.  The government received benefit and now I"m just looking for some case law to back up my decision to either pay or deny this claim.  I think it needs to be paid but looking forward to hear other peoples takes and some relevant cases about a claim like this.

Are you the contracting officer?

1102allday said:

The government received benefit and now I"m just looking for some case law to back up my decision to either pay or deny this claim.  I think it needs to be paid but looking forward to hear other peoples takes and some relevant cases about a claim like this.

Case law seems to suggest it should not be paid unless the CO knew it was going on, allowed it to happen and took no action to stop it. 

RC Nash Jr - Geo. Wash. L. Rev., 2009

Williams v. United States, 127 F. Supp. 617 (Ct. Cl. 1955) (implied ratification);

1102allday said:

So we had a COR commit an unauthorized Commitment.  Had the COR followed the proper procedures the unauthorized commitment would have been avoided.  The CO recommended that it should have been paid but the powers to be denied the ratification.  I think Deputy wanted to make a point but not sure about his rationale but now I have a claim under the disputes clause since the ratification was denied to pay the invoice.  The government received benefit and now I"m just looking for some case law to back up my decision to either pay or deny this claim.  I think it needs to be paid but looking forward to hear other peoples takes and some relevant cases about a claim like this.

These matters are highly dependent upon the specific facts. 

I searched the WIFCON Forum for some previous discussion and found some interesting threads.

if you are a KO and are dealing with a claim, I would hope that you have a legal office to advise you of the law and caselaw concerning the matter - again, the guidance is dependent upon the specific facts.

Another good source for any KO would be current or recent editions of  “Administration of Government Contracts”. by Ralph Nash and various co-authors. There are entire sections on unauthorized commitments.

Two interesting Forum discussion threads from the WIFCON Archives contain a lot of information, albeit not a lot of caselaw citations.

/legacy/reg/08d1e0912121d727.html  

/legacy/reg/0dc6f2402db6b740.html

I quoted from a Vern Edwards post in the first thread from 2000 that I provided a link to above:

“If a Government employee makes an unauthorized commitment to a contractor in a matter that is related to a contract (e.g., an unauthorized change that increases the cost of performance), the contractor can submit a claim to the contracting officer pursuant to the Disputes clause seeking payment under the existing contract rather than award of a new contract. If you read FAR 1.602-3 and FAR Subpart 33.2 together, it appears that an authorized official must ratify the unauthorized commitment before the contracting officer can agree to pay the claim under the existing contract.

If no one can or will ratify the unauthorized commitment, then the company must request payment on a quantum meruit basis through the General Accounting Office. See FAR 1.602-3(d).”

The thread, as a whole, contains lots of details and specific circumstances, exceptions, etc.

joel hoffman said:

If no one can or will ratify the unauthorized commitment, then the company must request payment on a quantum meruit basis through the General Accounting Office. See FAR 1.602-3(d).”

@1102allday  The above quote is outdated.   Here is a reference, the 2019 version of the "Contract Attorney Deskbook"  that will get you headed down the path of figuring out what to do........................................https://tjaglcspublic.army.mil/publications?p_p_id=110_INSTANCE_Jnxja3uDhXvh&p_p_lifecycle=0&p_p_state=normal&p_p_mode=view&p_p_col_id=column-1&p_p_col_pos=2&p_p_col_count=4&_110_INSTANCE_Jnxja3uDhXvh_struts_action=%2Fdocument_library_display%2Fview_file_entry&_110_INSTANCE_Jnxja3uDhXvh_fileEntryId=584951

I do agree that consulting an agency attorney is the best route with some of the thoughts and references provided in this thread giving you the ability to have a discussion with legal counsel.

C Culham said:

@1102allday  The above quote is outdated.   Here is a reference, the 2019 version of the "Contract Attoeny Deskbook"  that will get you headed down the path of figuring out what to do........................................https://tjaglcspublic.army.mil/publications?p_p_id=110_INSTANCE_Jnxja3uDhXvh&p_p_lifecycle=0&p_p_state=normal&p_p_mode=view&p_p_col_id=column-1&p_p_col_pos=2&p_p_col_count=4&_110_INSTANCE_Jnxja3uDhXvh_struts_action=%2Fdocument_library_display%2Fview_file_entry&_110_INSTANCE_Jnxja3uDhXvh_fileEntryId=584951

I do agree that consulting an agency attorney is the best route with some of the thoughts and references provided in this thread giving you the ability to have a discussion with legal counsel.

Thanks, Carl. I forgot to mention that things may have superseded that 2000 thread. Because each situation may be unique, the OP really needs to consult legal counsel.