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Unauthorized Committment


jmsmith

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I've been doing some searching and coming up empty handed. I'm looking for cases/examples of a COR directing the contractor to make a change, the contractor proceeds to make the change (and the government benefits), all the while knowing the COR (or should have known) had no authority to direct the change and the courts find in favor of the government.

I've heard contracting officers say they wouldn't play a claim under the above circumstances because the contractor knew the COR wasn't authorized to modify the contract. However, I was reading MA DeAntley Construction V. US No. 04-1052C and there it held for the contractor that the project engineer (who I'm assuming had no contractual authority) constructively changed the contract by ordering rock to be moved.

Although we have clauses(DFARS 252.201-7000 for instance) that tell the contractor who does or doesn't have the authority to direct changes, can someone show me a case where the courts held in favor of the government on a scenerio as described?

This seems like COR 101 to me, but I'm having trouble getting this straight in my head.

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Guest Vern Edwards

The subject is too complex to address in this forum. Get a copy of Administration of Government Contracts, 4th ed, by Cibinic et al., open it to the chapter on changes, and read the section on constructive changes.

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jmsmith:

I agree with Vern about reading N&C--this is not a black and white area, there is much gray here. I've added a similar thread from 11 years ago that lasted for 2 months. It may give you an idea of the complexity. After studying the area in N&C, you may be able to assist the contracting officers you mentioned.

"Unauthorized Commitment - Ratification v Claim (Part 1) (Part 2) (Part 3)"

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The most significant decision to come out in the last few years on this issue is Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339 (Fed. Cir. 2007). In that case, the court held that because the subject contract contained DFARS 252.201-7000 and the DFARS prohibited a COR from changing a contract, there were no changes to the contract. This was a controversial decision because the court did not adopt the theory of implied authority to hold the Government to the actions of the COR. Some have questioned whether this meant the end of implied authority in DoD. The June 2011 issue of the Nash & Cibinic Report has an article that has tracked similar cases since the 2007 decision and found that they have generally followed suit. See POSTSCRIPT II: CONTRACTING OFFICER AUTHORITY, 25 NO. 6 Nash & Cibinic Rep. ? 30.

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