Government Ratification of Extra Work
It is not uncommon for a contractor to perform additional work before the Government issues a contract modification. The contractor usually does so with good intentions. The additional work might be critical and performed to avoid costly delays. In most cases, the Government does the right thing and pays the contractor. But if the Government does not, there are several available legal theories to compel the Government to pay.
Quantum Valebant
Under the theory of quantum valebant, the Government is prevented from being unjustly enriched by enjoying the additional work without paying for it. The Contractor must show that the Contracting Officer accepted, through actions or inactions, the additional work, even though a modification was not issued. In other words, the Contracting Officer must have knowledge (constructive or actual) that the additional work was being performed. Engage Learning, Inc. v. Department of Interior, CBCA 1165, 12-1 BCA ¶ 34,960.
Contractual Ratification
Contractual ratification occurs when the Contracting Officer accepts responsibility for the additional work after it is performed, either directly or implicitly through his or her actions or inactions.
Institutional Ratification
If the contractor cannot show that the Contracting Officer ratified the work, the contractor can still prevail if it can be shown that a Government official with upper management status ratified the work. The prove institutional ratification: (1) the Government received and retained benefits from the unauthorized contract; (2) the ratification was not done by mistake but with knowledge of the work being paid for; and (3) the ratifying official must be one who either because of position or status, makes ratification reasonable. Americom Government Services, Inc., CBCA No. 2294 (August 13, 2014) Unlike contract ratification, the ratifying official does not have to have specific contracting authority in order for institutional ratification to occur.
Conclusion
If the Government attempts to escape liability by suggesting that a contractor performed work without authority, closely examine the facts to determine what legal theory fits. Choosing the correct legal theory, and focusing on the relevant facts, is essential to preparing a persuasive request for equitable adjustment or claim.
