CONTRACTING OFFICER'S APPROVAL NOT REQUIRED

You may find it difficult to find the contracting officer.  See our post on Who is Your Contracting Officer?  In that post we point out you must keep track of who your contracting officer is and then keep him or her fully informed about problems during performance.  You must also seek redress for any changes as the problems arises.  And, you must deal with the contracting officer who has the authority to commit the government.

But the approval or authorization of the contracting officer is not always required.  If anyone in the government is responsible for a constructive change, approval of the contracting officer is not required.  By that we mean you do not need to show that the contractive officer ordered, acknowledged or agreed with the change.  In short, the constructive change doctrine arises on a totally separate theoretical basis from a formal change requiring the authorization of the contracting officer.

Why?  Because the constructive change theory is based on breaches of government duties which are implied by law in every contract.  Defective specifications is based on breach of the government's warranty of its data package.  A specification writer made a mistake.  Superior knowledge is based on breach of the government's obligation to provide information necessary for successful performance.  Someone in the government failed to alert the contractor to a change or problem.  Failure to cooperate is based on breach of the government's obligation to cooperate and not interfere in the contractor's performance.  Inspectors, engineers or contract specialists may be guilty of lack of cooperation and interference.  Commercial impracticability is based on the government's obligation to provide a specification which is commercially practicable.

Many people don't know the history of constructive changes.  Prior to the Contract Disputes Act of 1978, the boards of contract appeals did not have jurisdiction over breach of contract claims.  As the boards encountered more and more problems based on breaches of contract, they developed the theory that a breach was a "constructive change" to the contract.  That theory has now had a long history of approval from the boards and the courts.

And, constructive changes do not require approval of  acknowledgement of  the contracting officer.

bill@spriggsconsultingservices.com