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