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MMP514

Claim vs. Ratification

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I may be wrong, but the simple answer seems to be for the program office to submit a PR with funds for services rendered.  The KO makes the award.  Note to file as to why it’s not a UC and doesn’t require ratification.  Contractor gets paid.

Unless you’re trying to punish the program office or contractor for some reason, why make it any more difficult than that?
 

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1 hour ago, jwomack said:

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?

jwomack,

Every part having to do with contract formation.  Which J&A authority in FAR Subpart 6.3 would be cited?

Quantum meruit is a judicial doctrine, not a FAR principle.  What Part(s) of the FAR allow for contracting officers to make after-the-fact sole-source contracts to favored contractors using the quantum meruit principle?

If I voluntarily decided to cut my office's grass this weekend, would you approve my invoice for payment?

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2 hours ago, jwomack said:

I may be wrong, but the simple answer seems to be for the program office to submit a PR with funds for services rendered.  The KO makes the award.  Note to file as to why it’s not a UC and doesn’t require ratification.  Contractor gets paid.
 

I recommended an approach in my 6:03pm comment on Monday.  It didn't get any traction.  

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7 hours ago, PepeTheFrog said:

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?

I don't think that. In my opinion I would not be dismissing a claim, because as far as I'm concerned I haven't received a claim. I've received a request for payment for which there is contract.

If the contractor wants to appeal on a deemed denial basis, that's his business. If the board wants to accept the appeal and find that there was a claim, that's within their power. They can overrule me. The government's attorneys will get to handle the appeal, and that's their job. If they don't want to fight, or don't fight well, that's their business.

If, in addition to accepting the appeal, the board finds that there was a contract, and that the contractor is entitled to payment under that contract, then more power to the contractor. It won't upset me. I will have been wrong in the board's eyes.

But I'll be damned if I'm going to let a contractor force me to issue a final decision on a request for payment for which, based on the facts we have, there is no basis in contract, and which I do not consider a claim for reasons I am perfectly able to state in no uncertain terms. The CO's duty to issue a final decision is contractual, arising from the Disputes clause. If the services were not provided under  contract, then there is no Disputes clause, and if there is no Disputes clause, there is no contractual obligation on my part to issue a final decision.

7 hours ago, PepeTheFrog said:

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?

No. The government's lawyers will make the government's case on appeal, unless they decide that the Government should pay. In my opinion it would not be prudent to issue a  final decision, because it might be considered acknowledgement that there was a contract for the services.

7 hours ago, PepeTheFrog said:

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?

I would tell them what I'm doing. The chief of the contracting office can overrule me. Legal offices have no authority over me. They advise me and advise my boss. I will consider their advice, but make my own decision.

I am amendable to persuasion when I get a good argument. I just haven't gotten one yet, even though one could be made by a researcher and thinker. I'm just wondering why my esteemed colleagues can't seem to put one together. Of course, if they do, there might be another argument. I love to argue. I can argue all day and all night. I want to be right, but I'd rather argue and be wrong than not argue. I would rather argue with a good interlocutor than answer elementary questions from people who ought to have done their homework. That's how I learned contracting--from senior people who loved to argue, and didn't think much of you if you wouldn't argue back. No way you could just go to those guys looking for an answer. You had to earn that answer. I learned something from every argument I made, even the ones that ended inconclusively.

The best way to learn how to fight is to fight. It's that, or leave the << bleeping >> neighborhood.

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55 minutes ago, Vern Edwards said:

I am amendable to persuasion when I get a good argument. I just haven't gotten one yet, even though one could be made by a researcher and thinker. I'm just wondering why my esteemed colleagues can't seem to put one together. Of course, if they do, there might be another argument.

PepeTheFrog will jump. How about: An express contract is not necessary to incur and file a claim under the Contract Disputes Act (and make Vern Edwards respond to your claim with a written final decision).

The Contract Disputes Act and claims thereof apply to any express contract or implied contract. See 41 USC 7102(a).

The contractor could allege an implied-in-fact contract in the absence of (or after the expiration of) an express contract and thereby incur and file a claim under the Contract Disputes Act.

Vern, will you respond to such a claim with a written final decision? Say the contractor properly certifies the claim and even cites the Contract Disputes Act's applicability to implied contracts.

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The contractor could allege an implied-in-fact contract in the absence of (or after the expiration of) an express contract and thereby incur and file a claim under the Contract Disputes Act.

Vern, will you respond to such a claim with a written final decision? Say the contractor properly certifies the claim and even cites the Contract Disputes Act's applicability to implied contracts.

Pepe:

Neither the Contract Disputes Act nor FAR Subpart 33.2 contains its own definition of contract, so when interpreting FAR Subpart 33.2 the definition in FAR 2.101 applies. That definition says that contracts are in writing. That would exclude implied contracts, as I understand them to be. However, CDA § 7102(a) says that the act applies to express and implied contracts, and FAR 33.210 says;

Quote

Except as provided in this section, contracting officers are authorized, within any specific limitations of their warrants, to decide or resolve all claims arising under or relating to a contract subject to the Disputes statute.

Thus, that presumably includes implied contracts, but FAR Subpart 33.2 gives COs no instructions about what to do if they receive a demand based on an implied contract. Neither FAR nor the statute defines implied contract, and the case law on implied contracts is very complex. I do not know much about implied-in-fact contracts, but I know that It is difficult for contractors to establish the existence of an implied contract, for a number of reasons.

If I received a demand explicitly based on an implied contract, I would refuse to issue a final decision. According to FAR 33.210(g):

Quote

(g) Any failure of the contracting officer to issue a decision within the required time periods will be deemed a decision by the contracting officer denying the claim and will authorize the contractor to file an appeal or suit on the claim.

Since that is right out of the CDA, hat applies to both express and implied contracts.

The rule is that all a contractor need do to appeal is to make a non-frivolous allegation of the existence of a contract. It does not have to first prove that there was such a contract in order for the board or court to have jurisdiction. See Engage Learning Inc. v. Salazar, 660 F.3d 1346 (Fed. Cir. 2011) and Black Tiger Co., ASBCA 59819, June 29, 2016. Thus the contractor could go to one of the boards or to the Court of Federal Claims on the basis of my deemed denial. Thus, if I refused to issue a decision, the contractor could appeal and, as Help indicated, the board or COFC would have to decide whether there was a contract and, if so, whether their claim had any merit.

In Tech Products, LLC, ASBCA 58789, 15-1 BCA ¶ 35940, the contractor submitted a "claim" based a demand for payment under an implied contract with the Army. The parties had not signed any contract. The CO, apparently feeling guilty about a deal that fell through after the contractor had spent some money in preparation, audited the claim and determined that the contractor was entitled to part of it. Here is a quote from the decision:

Quote

Following multiple difficulties in auditing the claim, as well as an initial decision in 2009, and a reconsideration request in 2011, the contracting officer rendered his final decision by date of 22 March 2013. The contracting officer determined that Tech Projects was entitled to reimbursement for a portion of its initial claim and denied a supplemental claim in its entirety. (R4, tab 50 at 10) In his decision, the contracting officer also asserted that “[t]he government is in agreement with Tech Projects that there is an implied contract when SBA acceptance occurs” (id.at 3). The contracting officer further stated that “it is understood that there was never a formal written contract but the SBA Acceptance Letter and actions by the government could be reasonably perceived by Tech Projects (or any other 8 (a) contractor) to constitute an implied contract” (id. at 4).

But when the contractor appealed, the Army moved for dismissal on grounds that the contractor had not proven the existence of an implied contract!!!!! So much for JAG review. Now get this:

Quote

We reject the Army's argument that the appeal must be dismissed because Tech Projects “does not allege adequate facts to show that an implied-in-fact contract was ever formed” (gov't mot. at 5). To the contrary, Tech Projects has advanced more than a “non-frivolous allegation,” Engage, 660 F.3d at 1353. The record contains the contracting officer's decision, in which he stated that “[t]he government is in agreement with Tech Projects that there is an implied contract when SBA acceptance occurs” and then declared that “the SBA Acceptance Letter and actions by the government could be reasonably perceived by Tech Projects (or any other 8 (a) contractor) to constitute an implied contract” (statement 7). Relying upon the contracting officer's decision, Tech Projects has alleged that he “properly recognized that there was a contract in fact” regarding the Target Control System requirement,” and Tech Projects prayer for a determination “that there were two contracts and that[,] in each case, the Contracting Officer's actions amounted to a termination for the convenience of the Government” (statement 8), cannot be dismissed as frivolous. Given their grounding, they must be regarded as non-frivolous and sufficient to defeat the jurisdictional challenge posed by the present motion.

Emphasis added. Now, why let the CO make a final decision saying that there is an implied contract and then argue for dismissal on grounds that there isn't one? The Army comes across as confused.

Reading the CDA and FAR Subpart 33.2 together, I think that if there is no apparent contractual (written document) basis for a "claim," a CO should not issue a final decision upon receiving a demand, because he has no basis on which to consider the demand a claim, as defined by FAR, and has no apparent contractual obligation to issue a decision for payment. Let the company appeal on the basis of deemed denial if they know enough to do so and have enough evidence to make a non-frivolous assertion. If the board takes jurisdiction, then the government's lawyers can argue the case.  I don't think FAR requires COs to issue final decisions on claims based on implied (unwritten) contracts, and I don't think COs should feel compelled to issue a final decision based on the possibility that the contractor will appeal a deemed denial and the board will take jurisdiction. If an appeal is made and the board takes jurisdiction, the agency lawyers can handle it.

H2H was right to call me out for a carelessly worded comment:

Quote

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.

What I should have said was that I don't think the contractor can successfully base its claim for payment for continued performance on a PO that had expired before the performance was rendered, and that there cannot be a claim without a contract. 

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Vern,

I appreciate your responses. Let me offer one of my own.

1. There was a contract. There was a written agreement executed by both parties that meets the definition of contract at 2.101. It was called a "purchase order" and, based on the purchase order, the contractor provided services and (presumably) received payment. The contract had terms, including a period of performance.

2. The contractor continued to provide services after the period of performance.

3. The contractor wishes to be paid for the services it provided, and for which the government received benefit.

4. The government acknowledges benefit received but believes the contractor is not entitled to payment because it should have stopped providing services at the end of the contractually specified period of performance. To be clear: performance WAS rendered but the issue is that performance continued after the contract's specified PoP had ended.

5. The contractor's argument will be that it was willing to end performance but the government failed to cancel the service, which was of a nature that it would be continually provided until cancelled. If the government didn't want the service to continue, it should have switched to another provider. That it failed to do so indicated it wanted performance to continue even past the contractual PoP. The government's argument is that the contractor had a duty to cease providing the service upon completion of the contractual PoP. Who's right? To be decided.

My only point in all this is that the contractor has a valid claim that must be heard. The claim is not based on an implied contract, but on the actual contract that the parties executed. The contractor is arguing that the contract continued beyond the agreed-to PoP because of the government's inaction. Essentially it would be saying that the government waived the PoP by continuing to accept and use the services. Reasonable people can and will disagree with that argument. If the CO denies the claim, that's fine and the contractor can appeal the denial.

I do agree that a valid claim must be related to one of the parties' discharge of its obligations under the contract. However, the term "related to" is to be read broadly (Todd Construction L.P., Federal Circuit, 2010 [s. p. 10]). In this case, the contractor would be arguing that its claim is related to the P.O. -- and I think that argument would be sufficient to get it a hearing on the merits.

Edited by bob7947
I added a link to the CAFC case and indicated the page.

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13 hours ago, ji20874 said:

Which J&A authority in FAR Subpart 6.3 would be cited?

If it’s within SAP a Part 6 citation wouldn’t be necessary.  Part 13 Procedures could be followed.

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13 hours ago, ji20874 said:

What Part(s) of the FAR allow for contracting officers to make after-the-fact sole-source contracts to favored contractors using the quantum meruit principle?

FAR 1.102(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.”

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13 hours ago, ji20874 said:

If I voluntarily decided to cut my office's grass this weekend, would you approve my invoice for payment?

Probably not, but I may and I wouldn’t be prohibited by FAR from doing so assuming it provided benefit to the Government, etc.

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Won't know until ( or if ) the attorney do research into the service providers history of leaving the switch on, or cutting the switch off.

My bet is the service provider cuts the switch off on individual accounts, ( ordinary people and small business )

When that can be proven, the question will be why did the service provider allow the services to continue if they have a track record of cutting them off for other than US Government customers. 

The other question I have ( not sure if discussed ) is how much money are we talking about and how many end users of these phones?  I thought I read invoices ran almost 2 months before someone noticed, but are we talking a couple dozen phones, couple hundred phones, or couple thousand phones?  relevant question ( if not answered already ) about if this is much to do about nothing and settling this.  The size and scope (in my mind) also matters in how easy it would be for end users to walk into Verizon or AT&T - keep their same phone number - and switch over to another carrier.  The government would be demonstrating its distaste for the current provider and doing what they would have done if alerted their service would be cut off.

Its also my strong sense, the providers T&C's were incorporated or signed up by the USG.  Which means provider could legally leave the switch on if not notified ahead of time to cancel.  Automatic renewals, I hate them.

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ji20874  - “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.” 

 

Seriously considering proposing a modification to the expired contract - considering that the invoices could be considered a claim (FAR 33.2 - unless I’m missing something in FAR or law) the Contracting Officer has broad discretion in making the determination. Taking this approach, we would need to support an implied contract (FAR 33.203 Applicability) and I believe we could do this.

Thoughts???

While I agree that some contractors may take advantage of the government by continuing work, I also feel that utilizing program, legal and contractor personnel to fight with the contractor is a waste of everyone’s time and money – especially when the government received a benefit and would likely pay in the long run. If there is an authority within the FAR or law to quickly and with as little resources/money used, that's the approach we want to take. Our organization will take this as a lesson-learned…..

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11 hours ago, Vern Edwards said:

Reading the CDA and FAR Subpart 33.2 together, I think that if there is no apparent contractual (written document) basis for a "claim," a CO should not issue a final decision upon receiving a demand, because he has no basis on which to consider the demand a claim, as defined by FAR, and has no apparent contractual obligation to issue a decision for payment. Let the company appeal on the basis of deemed denial if they know enough to do so and have enough evidence to make a non-frivolous assertion. If the board takes jurisdiction, then the government's lawyers can argue the case.  I don't think FAR requires COs to issue final decisions on claims based on implied (unwritten) contracts, and I don't think COs should feel compelled to issue a final decision based on the possibility that the contractor will appeal a deemed denial and the board will take jurisdiction. If an appeal is made and the board takes jurisdiction, the agency lawyers can handle it.

Vern, thank you for your entire response-- I have learned something. PepeTheFrog knew you had something up your sleeve!

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Help:

I think what you're arguing is that the CO should accept the demand for payment as a claim and write a final decision.

A point-by-point response, in the manner of the CO responding to the demand for payment.

1. Agreed, but irrelevant. The PO was for a specific time period. The services for which the firm (not "contractor") wants to be paid were rendered after the PO had expired by its express terms. The parties did not extend the PO. Yes, there once was a PO. So what?

2. Disagree. I have a problem with "continued," because I think it's a loaded word in the context of the situation. (I acknowledge that I have used the word "continued" in this thread, but I did so carelessly.) The services provided under the PO were severable and the final period of performance was expressly stated. The firm provided service during a period for which there was no contract for the service. They did not do so upon demand, and they did it without giving notice.

3. Agreed in part. The firm does want to be paid. But it is a question whether the Government received a benefit. What's the benefit? Just because Government employees used their phones doesn't mean that they used them for Government purposes.

4. Disagree. First, if you're relying on the comments of the OP to assert that the Government acknowledges that it received a benefit, it has not been established that the OP has the authority to represent the Government in that regard. Second, the Government does not assert that the firm is not entitled to payment because it should have stopped performing, but because the Government had no contract with that firm to perform during the period in question.

5. Disagree. The firm's asserted willingness and motive to perform are irrelevant, even if true, unless it asserts that the Government demanded the service under contract. It's entirely possible that the firm's performance was the result of its own neglect. What is relevant is what if any express or implied agreement existed between the parties. The Government does not say that the firm had a duty to the Government to cease the service. If it had any such duty, it was to itself. The Government says simply that there was no contract for the service during the period in question and thus no obligation on the part of the Government to pay for it. The parties apparently did not communicate about the period in question. They did not bargain for service during the period in question. They did not agree to a price for the period in question. The firm did not notify the CO that it was going to provide service during the period, it simply did so, voluntarily, and not upon demand. Whether or not the Government engaged another provider was of no concern to the firm. The Government had no duty to communicate with the firm in that regard.

8 hours ago, here_2_help said:

My only point in all this is that the contractor has a valid claim that must be heard.

What do you mean by "valid," what do you mean by "heard," and why do you think it "must" be heard?

8 hours ago, here_2_help said:

The claim is not based on an implied contract, but on the actual contract that the parties executed.

The "actual" contract? Do you mean the expired PO? What's the nexus?

8 hours ago, here_2_help said:

The contractor is arguing that the contract continued beyond the agreed-to PoP because of the government's inaction.

 What's your reasoning--post hoc, ergo propter hoc?

8 hours ago, here_2_help said:

The contractor is arguing that the contract continued beyond the agreed-to PoP because of the government's inaction.

Has the contractor identified the PO term that called for government action with regard to future performance? According to the OP, there was no such term.

8 hours ago, here_2_help said:

Essentially it would be saying that the government waived the PoP by continuing to accept and use the services.

"Waived"? To the best of my knowledge, there is no waiver doctrine to the effect that the government can waive the stipulated end of the contractor's obligation to perform. To the best of my knowledge, the waiver doctrine is a contractor defense against T for D. Educate me.

8 hours ago, here_2_help said:

However, the term "related to" is to be read broadly (Todd Construction L.P., Federal Circuit, 2010 [s. p. 10]).

I assume you meant Todd Construction LP v. US, 653 F.3d 1306 (Fed. Cir. 2011). If so, okay, "related to" is to be read broadly.

Bottom line: I think you are saying that the contractor is making a claim as defined by FAR 2.101 and the Disputes clause, because it is demanding payment on the basis that the Government had a duty under the PO to terminate the contract upon the expiration of the period of performance. It wants me to agree with its interpretation and pay the bill. If that's what the contractor is claiming, then I'll write a final decision and deny the claim if, in fact, the Government had no such duty under the contract.

Having said that, here is what I'd do in real life:

Two things are clear to me: both parties were managed by incompetents. Sensible people would have communicated prior to the end of the period of performance. But cell service providers are not customer oriented and it is hard to find anyone to talk to, and the Government is, well, the Government. The Government's CO should have reminded the requiring activity of the impending expiration of the contract. The requiring activity should have notified the cell phone holders to stop using the phones after December 31 and that if they didn't they would be personally liable for any charges incurred after that date. The CO should have sought confirmation that that had been done. Those actions would have been prudent behavior.  I don't know much about Government cell phone service, but maybe the requiring activity should have confiscated those phones.

This is not a matter for ratification or quantum meruit or implied-in-fact contracts Be prudent, practical, and efficient. If I were the CO, and assuming that funds are available for the period in question, I would not tell the contractor to submit a claim. I would call them, negotiate a discounted settlement, and modify the PO after the fact (yes, after the fact) to extend the service for two months at the settlement amount. I would not pay the full amount of the invoice, because the contractor was partly to blame.  I assume that we're talking about a small sum, below the SAT. If that were not the case, then I might do something else. Of course, I'd document the file and tell the whole sad story. (I'd mail copies to all my friends and to certain higher-ups. I'd make people laugh and shake their heads.)

I think that would be perfectly legal. Yes, the cell service provider should have stopped providing, but it didn't, and Government people should not have used the phones, but they did, because they had not been told not to.

Sorry, ji20874, but that's what I'd do, if for no other reason but to make a point with the requiring activity. I see no point in reinforcing incompetence with stupidity by making a bureaucratic hassle out of a small matter, and I wouldn't put all the blame on the contractor.

Fun argument, H2H, but my wife is going to kill me if I don't get off the computer and go bird watching with her. We're in the Wallowa Mountains in northeastern Oregon, Chief Joseph country. We're in a cabin on Wallowa Lake, and it's gorgeous out. We came to see the raptors on the Zumwalt Prairie and we weren't disappointed. Gave up counting all the various kinds of hawks. Went for a walk across part of the prairie, and my wife almost fainted from heat exhaustion, but we made it. Bad judgement. It was hotter than it seemed at first. Yesterday we drove north though Joseph Canyon to Clarkston and Lewiston in Idaho (named for Lewis and Clark). Beautiful drive until we drove down into that canyon and back up, which was a little nerve wracking. I think my wife had her eyes closed the whole way. Headed for Hell's Canyon on the Snake River today (deepest river canyon in the U.S., 7,993 feet--deeper than the Grand, but much smaller overall). The geology of this part of the U.S. is astonishing. Spectacular scenery. The people who live back East have no idea.

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11 hours ago, Vern Edwards said:

Thus, that presumably includes implied contracts, but FAR Subpart 33.2 gives COs no instructions about what to do if they receive a demand based on an implied contract. Neither FAR nor the statute defines implied contract, and the case law on implied contracts is very complex. I do not know much about implied-in-fact contracts, but I know that It is difficult for contractors to establish the existence of an implied contract, for a number of reasons.

Wouldn't COs follow the same procedures for an implied contract as they would for an express contract?

 

Quote

 

33.203 Applicability.

(a) Except as specified in paragraph (b) of this section, this part applies to any express or implied contract covered by the Federal Acquisition Regulation.

 

 

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30 minutes ago, MMP514 said:

While I agree that some contractors may take advantage of the government by continuing work, I also feel that utilizing program, legal and contractor personnel to fight with the contractor is a waste of everyone’s time and money – especially when the government received a benefit and would likely pay in the long run. If there is an authority within the FAR or law to quickly and with as little resources/money used, that's the approach we want to take. Our organization will take this as a lesson-learned…..

Yes, but some can't forego an opportunity to be a prick to a contractor.

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16 minutes ago, Don Mansfield said:

Wouldn't COs follow the same procedures for an implied contract as they would for an express contract?

Maybe. I suppose they could. But think about what that says. FAR 33.2 applies to an implied contract. So, if you follow the same procedure, are you acknowledging that there is an implied contract? It doesn't say alleged implied contract.

And what is an implied contract? The Army apparently couldn't figure it out in the case cited above.

Anyway, what's wrong with the deemed denial route? Some guy you never heard of before calls you up and says the Government owes him money for this or that he did and the CO has to write a final decision? Does he have to make an explicit assertion of an implied contract? I'll be honest, in the past when that happened to me I told the guy to get lost and never heard from them again. How many COs do you think know anything about implied contracts. I know very little.

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To Vern's point, here is a situation I faced some years ago.  Some of our employees were occupying office space in a GSA leased building where the water was unsafe to drink.  (Nothing's too good for the Feds and that's what they will get.)  Rather than go through the process of acquiring drinking water using appropriated funds, they merely chipped in and got a subscription to bottled water, (water cooler) provided by a commercial company.  As fate would have it, a dispute arose regarding payment and the company tried to file a claim against the government for the water it had provided to the government employees.  Obviously, we did not pay, although we spent many times more in resolving the issue without paying than what it would have cost to pay the company off and have them go away.

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3 hours ago, Vern Edwards said:

Anyway, what's wrong with the deemed denial route? Some guy you never heard of before calls you up and says the Government owes him money for this or that he did and the CO has to write a final decision? Does he have to make an explicit assertion of an implied contract? I'll be honest, in the past when that happened to me I told the guy to get lost and never heard from them again. How many COs do you think know anything about implied contracts. I know very little.

Nothing's wrong with it if the CO didn't think the Govt. was liable. 

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On Monday, July 25, 2016 at 6:03 PM, ji20874 said:

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.

Vern,

I agree with your practical approach.  I tried to offer such an approach earlier in the thread.

I never advocated for advising the contractor to file a claim -- I'm opposed to giving legal advice to contractors -- all I said was to reject the invoice and then to let the contractor file a claim if it chooses to -- if the agency rejects the invoice and the contractor never files a claim, then the matter dies -- that would be my expectation in this case.  But all the agency effort into justifying a quantum meruit answer is regrettable.  Like you, I wholly disagree with the quantum meruit approach that the agency is trying to use.

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5 hours ago, MMP514 said:

Seriously considering proposing a modification to the expired contract - considering that the invoices could be considered a claim (FAR 33.2 - unless I’m missing something in FAR or law) the Contracting Officer has broad discretion in making the determination. Taking this approach, we would need to support an implied contract (FAR 33.203 Applicability) and I believe we could do this.

Thoughts???

While I agree that some contractors may take advantage of the government by continuing work, I also feel that utilizing program, legal and contractor personnel to fight with the contractor is a waste of everyone’s time and money – especially when the government received a benefit and would likely pay in the long run. If there is an authority within the FAR or law to quickly and with as little resources/money used, that's the approach we want to take. Our organization will take this as a lesson-learned…..

If you want to pay the contractor for the two months by modifying the existing purchase order, look at my Monday 6:03pm comment and Vern's 4-hour-ago posting.  Read FAR 1.602-3( b )( 5 ), the definition of "issue in controversy" in FAR 33.201, and the first sentence of FAR 33.204.  I wouldn't use an implied contract argument.  Just do it, provided, as Vern rightly points out, that funds were available at the time.

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