Many years ago we wrote a law journal article on the judicial role of the contracting officer. We can send you a copy. We also have written several blog posts pleading contracting officers to recognize that role in deciding issues and disputes. Use our word search tool to review these posts. In frustration, we proposed the establishment of a disputes contracting officer (DCO) to the Commission on Government Procurement, circa 1970.
Guess what? We have been ignored. Most contracting officers act as advocates for the government's position and lack the desire to independently exercise a judicial role in handling disputes. Never mind all the law we quoted in our law journal article. Case law has made it clear contracting officers must act as judicial officers in handling disputes.
Enter ADR. Alternative Dispute Resolution is the answer. At any stage, say disagreements over contract interpretation, the parties may present their positions to an independent neutral real life judge for a binding or non binding decision. Yes, at any stage of an issue or a possible dispute. At any stage also means to resolve the REA or the threat to terminate for default. Any issue, any stage. The doors of the ASBCA and CBCA are wide open to hear your request to get a real judge involved.
We have seen many cases where the parties should have sought ADR. Take the hang up over how the contract provisions should be interpreted. Take the question of whether extra work and cost is truly compensable. Take questions of concurrent delays and remission of liquidated damages. All of these issues can be quickly, efficiently and economically resolved by ADR.
But it takes two to tango. Both parties must agree to make the request for ADR and they must agree on the procedures for presentation and resolution. The ASBCA, for example, has instructional guidance for requesting ADR and a sample agreement available at its website.
One last plea. Contracting officers have a duty to act judicially, not as advocates for the government's position when a dispute arises. That won't happen. The answer is ADR. Please.
bill@spriggslawgroup.com
Thursday, May 14, 2020
Tuesday, May 5, 2020
RATIFICATION OF UNAUTHORIZED ACTS
What happens when a government employee does or says something costing you money and the contracting officer says you will not be compensated because the act or statement was unauthorized? Do you have a claim? Probably yes, for several reasons.
There are compensable constructive changes well recognized in government contract law. Superior knowledge is where a government employee fails to disclose information vital to performance. Defective specifications is where a government employee writes drawings or specifications which include errors, conflicts or omissions. Commercial impracticability is where the specification writer prepares a contract requirement which is commercially impossible or impracticable of performance. Any government employee's action can be a constructive change if the action breaches the implied by law obligation of the government to cooperate with and not interfere in the contractor's performance. Constructive acceleration can be compensable based on pressure from government employees.
Then there is ratification. Ratification is the approval of a previously unauthorized contract action by one or more individuals who possess actual authority to contract (the contracting officer). Such ratification can only be based on a full knowledge of all the facts upon which the unauthorized action was taken. Full knowledge may be constructive rather than actual. Constructive knowledge can exist where an official knew or should have known of a matter and was silent. Ratification exists by implication from the contracting officer's failure to dissent within a reasonable time after learning what had been done. Assent can be inferred from silence where one would naturally be expected to speak.
All of the foregoing principles are pronounced eloquently in a recent decision of the Civilian Board of Contract Appeals (CBCA). The opinion is a veritable text book on the law of ratification. We recommend that you read the decision. We'll be happy to send you a copy if you email us.
So, do not be deterred by a contracting officer who tells you that since he did not order or approve the change you have no claim. Constructive changes do not require his order or approval. Silence may also be approval in the form of ratification if your situation fits the legal requirements discussed above.
bill@spriggsconsultingservices. bill@spriggslawgroup.com
There are compensable constructive changes well recognized in government contract law. Superior knowledge is where a government employee fails to disclose information vital to performance. Defective specifications is where a government employee writes drawings or specifications which include errors, conflicts or omissions. Commercial impracticability is where the specification writer prepares a contract requirement which is commercially impossible or impracticable of performance. Any government employee's action can be a constructive change if the action breaches the implied by law obligation of the government to cooperate with and not interfere in the contractor's performance. Constructive acceleration can be compensable based on pressure from government employees.
Then there is ratification. Ratification is the approval of a previously unauthorized contract action by one or more individuals who possess actual authority to contract (the contracting officer). Such ratification can only be based on a full knowledge of all the facts upon which the unauthorized action was taken. Full knowledge may be constructive rather than actual. Constructive knowledge can exist where an official knew or should have known of a matter and was silent. Ratification exists by implication from the contracting officer's failure to dissent within a reasonable time after learning what had been done. Assent can be inferred from silence where one would naturally be expected to speak.
All of the foregoing principles are pronounced eloquently in a recent decision of the Civilian Board of Contract Appeals (CBCA). The opinion is a veritable text book on the law of ratification. We recommend that you read the decision. We'll be happy to send you a copy if you email us.
So, do not be deterred by a contracting officer who tells you that since he did not order or approve the change you have no claim. Constructive changes do not require his order or approval. Silence may also be approval in the form of ratification if your situation fits the legal requirements discussed above.
bill@spriggsconsultingservices. bill@spriggslawgroup.com
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