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MMP514

Claim vs. Ratification

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In situations where the contractor continues to provide services (ie, cell phone services) after the purchase order has expired and submits an invoice, would the contractor need to submit a claim in accordance with FAR 33.206 in order to be paid?  FAR 1.602-3 Ratification of unauthorized commitments would not apply (I don't think) because a government representative did not authorize (verbally or in writing) the continuation of services.

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I agree it is not a ratification.  An essential element in a ratification is that there allegedly was an unauthorized commitment made by someone ("the Government representative").  No someone, no person, no Government representative who made an agreement?  No ratification.

If the contractor wants payment, it has to be under the terms of the expired contract, right?  That's a dispute.  Can the contractor make a case that it is entitled to payment under the terms of the expired contract?

I recommend you reject the invoice, if you don't see anything in the contract that binds the Government to continual payments.  Let the contractor file a claim, if it chooses to.

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Please do not drink the koolaid that the Government must pay because it received a benefit.  Reject the invoice.

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2 hours ago, ji20874 said:

Please do not drink the koolaid that the Government must pay because it received a benefit.  Reject the invoice.

Why not assess whether the acceptance of benefits has created an implied-in-fact contract?

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Don,

Because regardless, the invoice needs to be rejected.

If the agency wants to create a new contract and back-date it (or modify the contract to extend the period of performance to the present), it can do so with an appropriate sole-source justification -- and then it can process an invoice.  But today, reject the invoice.

And be cautious about encouraging implied-in-fact contracts -- we don't want to allow contractors to drain the Treasury by providing services that weren't ordered and then getting paid.

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7 hours ago, MMP514 said:

In situations where the contractor continues to provide services (ie, cell phone services) after the purchase order has expired and submits an invoice, would the contractor need to submit a claim in accordance with FAR 33.206 in order to be paid?  

In order to submit a Contract Disputes Act claim under FAR Subpart 33.2, there must be a contract. If the PO had expired, then I don't think that the contractor can submit a claim.

Did government personnel use the cell phone service after the expiration of the PO?

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If there was no contract and no one in the Government ordered services such that a ratification is appropriate, but the Government still received the benefit of the services, then the contractor may have a claim arising out of Quantum Meruit.

Such claims used to be settled by GAO, and if you check Comp Gen decision you will find old decisions laying out the basis for deciding a claim based on Quantum Meruit.  In 1995-96, Congress transferred authority to settle general claims to OMB.  OMB has since delegated much of that authority to the Executive Agencies.  If you are in DoD, that authority now rests with the Claims Division at the Defense Office of Hearings and Appeals.  You can find more information here: http://www.dod.mil/dodgc/doha/faq-cd.html

I recently dealt with a situation similar to the OP's, and dealing with this office is not a quick process.  It was a relatively straight-forward claim that the Agency agreed should be paid.  After all documentation was submitted, it took about a year for them to issue an opinion granting authority to pay based on Quantum Meruit.

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16 hours ago, Vern Edwards said:

In order to submit a Contract Disputes Act claim under FAR Subpart 33.2, there must be a contract. If the PO had expired, then I don't think that the contractor can submit a claim.

Vern,

Surely you are not asserting that the CDA Statute of Limitations for filing a claim is zero, are you? The contractor has six years from the date of claim accrual to file. The expiration of the PO is irrelevant.

Claims can "arise under" or be "related to" a contract, and those terms are interpreted broadly by the Boards and Courts. The ASBCA just went through the logic in the ABB Enterprise Software decision on the Government's motion to dismiss for lack of jurisdiction.

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Help:

What are you talking about? The expiration of the PO is relevant if the service in question was performed after the PO period of performance had expired. If the PO stated that the contract ended on date X, and the service for which the invoice was sent was rendered after that date, how is the expiration of the PO irrelevant? How can a claim for service rendered after the expiration of a contract period of performance accrue against the expired contract? The additional service was out of scope and rendered voluntarily, unless there are facts of which we are unaware, like an authorized extension.

If I award a contract for the delivery of a dozen eggs each month beginning in July 2015 and ending in July 2016, and if the contractor delivers another dozen eggs in August 2016, how can the August 2016 delivery be the source of a claim arising under or relating to the contract that I awarded?

A claim for services rendered does not relate to a contract simply because the service  was of the same nature as the service called for by the contract. That's not what "relating to" means. Read the definition in FAR 33.213.

The facts in ABB Enterprise Software, Inc., F/K/A Ventyx, ASBCA 60314, June 29, 2016, are not similar to the facts presented in this thread. That case had to do with violation of a software license entered into in support of two commercial item contracts that weren't incorporated into the contracts. The board ruled that although not incorporated, the license was clearly signed as part of those deals:

Quote

The facts, plainly recognized by the Navy contracting officer and other officials, and which the Navy’s motion never confronts, demonstrate clearly that the execution of the license agreement was part and parcel with the performance of the contract.

Without persuasive case analysis from you, I don't see that decision as having any bearing on the matter at hand in this thread.

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I would handle it differently than ji20874. First, I would notify the contractor that the PO expired and they should stop billing the Government. Then, I would determine whether the Government had any liability for the service provided after the expiration of the PO. Acceptance of benefits could give rise to such liability. From Formation of Government Contracts, Chapter 2, Section I:

Quote

Implied-in-fact contracts may also be created through the acceptance of benefits with the knowledge that the contractor expects to be compensated, Pacifi cMaritime Ass'n v. United States, 123 Ct. Cl. 667, 108 F. Supp. 603 (1952) (labor referral services by the contractor accepted with knowledge that compensation was expected); Buffalo & Fort Erie Pub. Bridge Auth. v. United States, 106 Ct. Cl. 731, 65 F. Supp. 476 (1946) (premises used with knowledge that contractor expected compensation); Equitable Life Assurance Soc'y, GSBCA 8909, 90-3 BCA ¶ 23,130 (directive to contractor/lessor to replace carpet in leased office space made with knowledge that contractor expected compensation); Robert J. DiDomenico, GSBCA 5539, 82-2 BCA ¶ 16,093 (building alterations not called for in the contract ordered with knowledge that contractor expected compensation).

Since implied-in-fact contracts require conduct of the parties manifesting assent, the mere conferring of a benefit on the government does not create a contractual relationship, Mega Constr. Co. v. United States, 29 Fed. Cl. 396 (1993). In private transactions, conferring a benefit may permit recovery under a restitutionary theory. In government contracts, however, sovereign immunity from suit has not been waived for restitutionary actions. Such claims have been called "quasi-contract" or "implied-in-law"contract claims, which are not actionable under the Tucker Act, 28 U.S.C. § 1491, or the Contract Disputes Act of 1978, 41 U.S.C. § 7101 et seq. These statutes waiving sovereign immunity for suits on express or implied contracts have been held to exclude suits on contracts implied in law. See Trauma Serv. Group v. United States, 104 F.3d 1321 (Fed. Cir. 1997); Dureiko v. United States, 62 Fed. Cl. 340 (2004). See Merritt v. United States267 U.S. 338 (1925), stating at 341:

The Tucker Act does not give a right of action against the United States in those cases where, if the transaction were between private parties, recovery could be had upon a contract implied in law.

In Russell Corp. v. United States, 210 Ct. Cl. 596, 537 F.2d 474 (1976), the court recognized this distinction and its inability to grant remedies on quasi-or implied-in-law contracts, stating at 609:

Implied-in-fact contracts differ from contracts implied in law (quasi-contracts), where a duty is imposed by operation of law without regard to the intent of the parties. Such arrangements are treated as contracts for the purposes of remedy only. This court, of course, has no jurisdiction to render judgment against the United States based upon a contract implied in law.

If the Government had liability due to an implied-in-fact contract, I would recommend payment. If not, I would reject the invoice.

Lionel,

The web site that you linked has the following Q&A:

Quote
I believe that the claims being referred to in the answer are based on implied-in-law contracts. 

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Vern,

In my view you are conflating claim entitlement with claim accrual.

The contractor may or may not be entitled to its claimed amount (assuming it files a claim). However, that has nothing to do with whether or not the contractor may file a claim, have that claim adjudicated by a contracting officer, and appeal that COFD if it desires.

 

You said the expiration of the PO means the contractor cannot submit a claim that arises under or is related to that PO. That is wrong.

 

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Extending a fixed-term contract

If you don’t see anything about extensions in the original contract, or if the information is unclear, ask the wireless provider to explain before you sign.

Extensions start automatically once your original contract expires. They will take place on a month-to-month basis. No new contract needs to be signed. The terms and conditions remain the same.

If you do not want the contract extended, or do not want further extensions to happen,  we recommend you cancel the original contract by giving written notice to the wireless provider 30 days before it expires.

Cancelling a fixed-term contract

You can cancel a fixed-term contract with a wireless provider when they do not clearly disclose information. If you do this within 1 year, you are entitled to a full refund.

But you must return any free or discounted items given to you under the contract if the wireless provider asks.

 

 

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5 hours ago, here_2_help said:

Vern,

In my view you are conflating claim entitlement with claim accrual.

The contractor may or may not be entitled to its claimed amount (assuming it files a claim). However, that has nothing to do with whether or not the contractor may file a claim, have that claim adjudicated by a contracting officer, and appeal that COFD if it desires.

You said the expiration of the PO means the contractor cannot submit a claim that arises under or is related to that PO. That is wrong.

I'm not conflating anything, and saying that I'm wrong does not make me wrong. If you think I'm wrong, make an argument that proves it. All you have done is assert. Your first assertion, based on ABB Enterprise Software, Inc., F/K/A Ventyx has failed. Try again.

A demand or assertion for payment is not a claim unless it satisfies the definition of claim in FAR 2.101 and the Disputes clause, FAR 52.233-1. I say that a demand or assertion for payment under a contract that does not arise from performance required by that contract or breach of that contract by the government does not constitute a claim as officially defined. Continued performance of work by a firm, not due to an act or omission by the government, but at its own initiative or due to its own neglect after a contract has expired and performance is no longer contractually required cannot be the basis for any demand for payment or assertion of a right to payment under that expired contract. That being the case, the contracting officer is not obligated to make a final decision on such a demand or assertion, because, since there was no contract for the continued performance there is no contractual obligation to make a final decision. 

Now, prove I'm wrong.

(In order to prove an implied-in fact contract, the contractor would have to show that the government employee who acted to create the contract had the authority to do so, which is very hard to do unless the employee is a CO.)

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5 hours ago, Vern Edwards said:

If I award a contract for the delivery of a dozen eggs each month beginning in July 2015 and ending in July 2016, and if the contractor delivers another dozen eggs in August 2016, how can the August 2016 delivery be the source of a claim arising under or relating to the contract that I awarded?

It would be prudent to reject the goods or services upon delivery and notify the Contractor of its error in a reasonable amount of time.  Instead, it seems like the agency made a soufflé, threw the eggs at each other, and cooked some on the sidewalk.  Not to be cocky, but after all that, the Contractor has an eggspectation of getting paid. 

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2 hours ago, Vern Edwards said:

Continued performance of work by a firm, not due to an act or omission by the government, but at its own initiative or due to its own neglect after a contract has expired and performance is no longer contractually required cannot be the basis for any demand for payment or assertion of a right to payment under that expired contract.

Vern, you have assumed the contractor performed at its own initiative and not due to an act or omission by the government. Those assertions are for a trier of facts to decide. The trier of facts decides those things because the contractor files a claim and it gets heard.

Now, back to your post that I already quoted: "In order to submit a Contract Disputes Act claim under FAR Subpart 33.2, there must be a contract. If the PO had expired, then I don't think that the contractor can submit a claim." That's wrong.

My proof:

FAR 2.101 defines a contract and expressly includes a purchase order in the list of mutually binding agreements that fall under the definition. Thus: A purchase order between government and contractor is a contract. FAR 33.206(a) states that "Contractor claims shall be submitted, in writing, to the contracting officer for a decision within 6 years after accrual of a claim..." The six-year period is not lessened by the expiration of a contract's period of performance. Thus, the expiration of the P.O. is irrelevant for purposes of determining whether or not the contractor can file a claim. It may be quite relevant for purposes of determining whether or not the contractor is entitled to the relief it may be seeking. But that's a different thing entirely.

You have posted that an expiry of the PO eliminates the contractor's ability to file a claim. That's wrong. The contractor has six years from the date of claim accrual to file a claim.

You should admit you were wrong and we can be done with this nonsense.

 

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12 hours ago, here_2_help said:

You should admit you were wrong and we can be done with this nonsense.

Help:

I would admit that I am wrong if you could prove to me that I am wrong, but you haven't proven it. Your "proof" handily ignores the fact that the PO expired before the performance was rendered for which the contractor wants to be paid. Wouldn't that make any "claim" by the contractor frivolous?

Yes, the contractor has six years to assert a claim that accrued under a contract. But that assumes that the so-called claim did, in fact, accrue under that contract. See FAR 33.201:

Quote

“Accrual of a claim” means the date when all events, that fix the alleged liability of either the Government or the contractor and permit assertion of the claim, were known or should have been known. For liability to be fixed, some injury must have occurred. However, monetary damages need not have been incurred.

What if the date of the event that supposedly fixed liability was after the date of contract expiration and the event was not prompted by government behavior? Here's the original scenario:

Quote

In situations where the contractor continues to provide services (ie, cell phone services) after the purchase order has expired and submits an invoice, would the contractor need to submit a claim in accordance with FAR 33.206 in order to be paid?  FAR 1.602-3 Ratification of unauthorized commitments would not apply (I don't think) because a government representative did not authorize (verbally or in writing) the continuation of services.

That sounds to me like the continued performance was inadvertent.

Now imagine this dialogue: I am a CO. I issued a PO that expired at the end of May and I thought that our business with XYZ Corp was finished. But XYZ Corp's president calls me:

XYZ Corp: Hi Vern. I just sent you an invoice for June. I hope you can expedite payment.

Vern: Invoice for June? Why?

XYZ: Because we provided services to you in June.

Vern: You did? Why?

XYZ: Because you didn't cancel the contract, so we continued to perform.

Vern: Why should I "cancel" the contract? The contract stated that the period of performance ended on May 31.

XYZ Corp: Yes, but you didn't tell us we were done.

Vern: Why should I tell you? We signed a contract. The contract said that the period of performance was 1 June 2015 through 31 May 2016. The contract contained no options and "no renewal" notice requirement, did it?

XYZ Corp: No,but a "no renewal" notice is standard practice in our industry.

Vern: I go by the contract, not by your industry's standard practice. It's not our fault that you didn't cut off the spigot.

XYZ Corp: Well, we provided a service and I guess we're going to have to submit a claim.

Vern: You can submit a request for payment and call it a "claim," but I'm not going to handle it as a claim.

XYZ Corp: Why not?

Vern: Because we had no contract for June, which is what you want to bill us for, and so there was no contract on which to assert a claim, and I have no contractual obligation to consider one for work you did without a contract. 

XYZ Corp: We're basing it on the old contract.

Vern: No, you're not. The old contract did not require performance in June. It expired at the end of May. So you have no basis upon which to submit an invoice against that contract or assert a claim on the basis of that contract. Heck, some people might consider that to be a false claim. 

XYZ Corp: Well, I'm going to submit a claim anyway.

Vern: I'll acknowledge receipt, tell you what I just told you, and do nothing else with it.

XYZ Corp: Well, I'll appeal to the board.

Vern: Appeal away. Nice talking to you.

*     *     *

Now, if the contractor provided facts that supported an assertion that the contract had not expired or that something in the contract had required him to perform after it expired, I suppose I'd have to reconsider, but that's not the scenario provided by the OP. The OP wanted to know if the contractor would have to submit a claim in order to get paid. I said that there has to be a contract in order for there to be a claim.

I'm sticking to my position. You haven't proven that I'm wrong on the basis of a valid argument or evidence from statute, regulation, or case law. If you want me to concede, you'll have to prove that I'm wrong. I'm not going to concede just because you demand it. I could support your argument, but it seems that you can't.

Don't be so eager for our discussion to end. What do you want to do here, just answer endless questions from the clueless about travel costs? Aren't you intrigued by the challenge of finding the truth of this matter and proving that it's the truth?

But if you don't want to engage, then don't.

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Two of PepeTheFrog's favorite posters disagree, but it seems like they're two ships passing in the night.

17 hours ago, Vern Edwards said:

That being the case, the contracting officer is not obligated to make a final decision on such a demand or assertion, because, since there was no contract for the continued performance there is no contractual obligation to make a final decision.

If the contracting officer fails to provide a final decision, there will be a "deemed denial" (just as if the contracting officer denied the claim) after the required response period elapses. The contractor will be free to appeal the ("denied") final decision to the Court of Federal Claims (CFC) or the Boards. See 41 USC 605(c); FAR 33.211(g).

Sure, the CFC/Boards may agree with Vern's analysis when it encounters the appeal of the final decision. Maybe it will dismiss, or deny, the claim. But what's to stop the contractor from alleging the facts (which Vern maintains did not happen) which can tie the claim to Government behavior or things that happened during the contract period of performance? (Before you say FAR 33.209 or false claims, remember, that's assuming those facts did not happen.)

Vern, it seems like you think the contracting officer has the ability to somehow "dismiss" a claim rather than deny it (or simply ignore it, and allow a "deemed denial" to take place). Is that what you're actually saying?

14 hours ago, here_2_help said:

Vern, you have assumed the contractor performed at its own initiative and not due to an act or omission by the government. Those assertions are for a trier of facts to decide. The trier of facts decides those things because the contractor files a claim and it gets heard.

PepeTheFrog agrees with here_2_help's assertion above.

13 hours ago, Vern Edwards said:

That sounds to me like the continued performance was inadvertent

Vern, if you were the contracting officer, you could make that analysis in your final decision. But another contracting officer writing that final decision could find that although

13 hours ago, Vern Edwards said:

a government representative did not authorize (verbally or in writing) the continuation of services

a Government representative performed some act or omission that authorized or encouraged the continuation. The CFC/Boards could also make findings either way.

13 hours ago, Vern Edwards said:

Vern: I'll acknowledge receipt, tell you what I just told you, and do nothing else with it.

XYZ Corp: Well, I'll appeal to the board.

Vern: Appeal away. Nice talking to you.

Vern, if you were the contracting officer, wouldn't it be more prudent to actually write a final decision that outlines the facts as you see them, to solidify, strengthen, and document your position before it's appealed? Why would you ignore this claim entirely and allow a "deemed denial"? Do you think the legal office or the head of contracting activity would be pleased with your decision to allow a "deemed denial" and not even write a final decision? It seems like a very ballsy, almost reckless wager that the CFC/Boards will totally agree with you, when the price of your insurance is simply cranking out a quick memo (final decision).

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The interesting thing (to me) about the ABB Enterprise Software appeal is that the Navy essentially told the contractor just what Vern's hypothetical dialog did: "We're done talking. If you think you have a CDA claim, go ahead and file one." When the contractor did indeed file its claim, the CO denied it on the grounds that the CDA did not apply to the contractor's claim. Imagine how confused the contractor felt ... on one hand they have written correspondence telling them to file a CDA claim, but on the other hand they have a COFD saying they were not entitled to file a claim under the CDA.

Fortunately Judge Prouty at the ASBCA saw things differently than the CO did, and will let the contractor's claim be heard. The contractor may or may not win on the merits, but its claim will be heard.

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I love Vern's imaginary conversation!  Right on!  Why do so many contracting officers agonize over the poor, pitiful contractor and do their very best to find some way to empty the Treasury into the contractor's pockets?

Reject the invoice.

Let the contractor make its case for entitlement to payment under the expired contract.

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Folks - thanks for all the input on this.... I'm new to using this board and will certainly do so in the future.

Additional details:

1. The contract (for cell phone services) expired December 31st and the contract was explicit in this (ie, no options, nothing that would appear as express or implied authority).

2. The contractor did not stop services and the personnel with the phones continued using the cell phone services; as the customer, they were unaware of the contract expiration.

3. Government personnel realized mid-Feb that the contract had expired and immediately issued a new contract beginning March 1st - thus the contractor is awaiting payment for January and February (invoices have been rejected and the contractor has been contacted).

4. A ratification was initiated and the details revealed that government personnel had not directed the contract to continue - thus ratification through FAR process is not an option.

5.  Legal council has advised that we pay the contractor under quantum meruit principles but this seems to be a new concept for all in our organization so I'm having to piece this together. He has provided me a sample D&F for the Payment for Services Received Pursuant to Equitable Quantum Meruit Principles which I am working with the Contracting Officer on finalizing.

The question from management is: under what authority do we utilize the quantum meriut principles and does it tie back to the FAR or other authority? What is/or is there a defined process - if not, is there a process we can borrow?

What I've found so far....

  • Regulatory Authority for paying under quantum meruit principles:

  • 1.102 Statement of guiding principles for the Federal

    • (d) “…In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.”

  • 1.102-3 Acquisition Team.

    • (e) “…If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.”

      • FAR 1.206(d) Nonratifiable commitments. Cases that are not ratifiable under this subsection may be subject to resolution as recommended by the Government Accountability Office under its claim procedure (GAO Policy and Procedures Manual for Guidance of Federal Agencies, Title 4, Chapter 2), or as authorized by FAR Subpart 50.1. Legal advice should be obtained in these cases.

        • Title 4--Claims  “…This title contains regulatory material relating to (1)  doubtful claims by and against the United States, including loss-and-damage claims, (2) claims which may be paid administratively under regulations issued by the General Accounting Office pursuant to statute, (3) claims which, because of statutory provisions, I may be paid only after settlement by the General Accounting Office, (4) administratively uncollectible debt claims, including loss-and-damage claims; and (5) waiver of claims for erroneous payments of pay and certain a1lowances.”

  • B-195123, July 11, 1979 -  “RECOGNITION OF A RIGHT TO PAYMENT ON THIS BASIS, HOWEVER, REQUIRES A SHOWING (1) THAT THE GOVERNMENT RECEIVED A BENEFIT AND (2) THAT THE UNAUTHORIZED ACTION HAS BEEN EXPRESSLY OR IMPLIEDLY RATIFIED BY AUTHORIZED CONTRACTING OFFICIALS OF THE GOVERNMENT. DEFENSE MAPPING AGENCY, B-183915, JUNE 25, 1975, 75-2 CPD 15; THE SINGER COMPANY, B-183878, JUNE 20, 1975, 75-1 CPD 406.“

  • GAO B-209173, Jan 17, 1983 Payment on Quantum Meruit Basis in Absence of Formal Contract - The Navy requested an advance decision as to the legality of certification for payment to a private firm for services rendered for the maintenance of data processing systems for a 3-month period. The Navy also requested a decision as to which fiscal year appropriation should be charged with the payment. Although the Navy and the firm did not enter into a formally executed contract covering the services for the period in question, the Navy requested that the firm provide the services since the firm had provided them under a recently expired Government contract. Due to technical irregularities and confusion in the Navy procurement process, no express contract arose for the performance of work during this period. GAO held that, although no formal contract existed, the Government received a benefit, and contracting for the services was not prohibited by statute or regulation. Accordingly, payment may be made on a quantum meruit basis. The proper appropriation account to be charged with payment would be the fiscal year appropriation current when the liability for the payment arose.

  • GAO B-213489, MAR 13, 1984 – “IN APPROPRIATE CIRCUMSTANCES, INCLUDING WHEN A CONTRACTING OFFICER DECLINES TO RATIFY AN INFORMAL OR UNAUTHORIZED COMMITMENT, PAYMENT MAY BE MADE FOR SERVICES RENDERED ON A QUANTUM MERUIT BASIS (THE REASONABLE VALUE OF WORK OR LABOR) OR FOR GOODS FURNISHED ON A QUANTUM VALEBANT BASIS (THE REASONABLE VALUE OF GOODS SOLD OR DELIVERED). DELOSS CONSTRUCTION COMPANY, B-196004, NOVEMBER 2, 1979, 80-1 CPD 201.”

  • B-218957 August 1, 1985 - “The record does not disclose that any officer or employee of the Government requested, or was even aware that the telephone company had undertaken the actions in question. In other words, the telephone company was acting as a volunteer….. Where a valid written contract for a procurement was never executed and the agency is unable to establish even an implied agreement to pay for the goods or services provided, the agency may not ratify the procurement retroactively. However, under this Office's claims settlement authority (31 U.S.C. S 3702), the Comptroller General may authorize reimbursement to the contractor on a quantum meruit or quantum valebant basis when certain conditions are met.”  http://www.gao.gov/assets/470/465601.pdf

  • Common Law?????

    • A legal treatise is a scholarly legal publication containing all the law relating to a particular area, such as criminal law or trusts and estates.

    • The Restatement (Second) of the Law of Contracts is a legal treatise from the second series of the Restatements of the Law, and seeks to inform judges and lawyers about general principles of contract common law.

 I'm working on a product for my agency on this topic (once I get it sorted out).... if anyone's interested, let me know and I'll send you the brief.

Thanks again!

 

 

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I don't think the contracting officer, all by him- or herself, can issue a brand new contract on a quantum meruit basis.  The contracting officer needs to follow the FAR.  Quantum meruit is a judicial doctrine, meaning that judges get to order its use in settling disputes after the contractor has made its argment.  If the contracting officer wants to write a brand new contract, he or she relies on the FAR.  If the contractor wants a contract based on quantum meruit, it needs to get itself in front of a judge (or other competent authority).

Here, the contractor hasn't even made a case yet, and everyone in the agency is trying to find a way to give money to the contractor.  It's July -- Christmas is a long way away -- but even then, it's Uncle Sam, not Uncle Sugar, and Uncle Sam's contracting officers shouldn't give gifts through the contracting process.

There are two avenues, as I see it -- (1) a claim, with an actual or deemed denial followed by an appeal to the proper board or court; or (2) the process in FAR 1.602-3 for nonratifiable commitments.  Either avenue could result in a quantum meruit outcome, or not, depending on the lawyers.  It sounds like the contractor will win, because the agency lawyers have already folded.

The agency has drunk the koolaid that it must pay because it received a benefit.  Maybe I'll cut my office's grass this weekend and send in an invoice for payment.  Other than FAR Subpart 3.6, what's the difference?

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MMP514,

If contract expiration was explicitly marked, ask your legal team why it is not unjust enrichment? 

These service providers leave the switch on because they know government CO's ( like yourself) will have a dilemma, typically resulting in their favor.

My opinion, It broke ethics and breached contract if payment is made for these services.

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1 hour ago, ji20874 said:

I don't think the contracting officer, all by him- or herself, can issue a brand new contract on a quantum meruit basis.  The contracting officer needs to follow the FAR.

What basis are you saying an Agency couldn’t execute a new contract based on its own determination, i.e., without a Court Order?  What Part(s) of the FAR would be violated?

 

1 hour ago, ji20874 said:

There are two avenues, as I see it -- or (2) the process in FAR 1.602-3 for nonratifiable commitments.

1.602-3, nonratifiable commitments, implies there was a commitment.

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