In base operating support (BOS) services contracts, end users and Contracting Officer’s Representatives can call in maintenance requests for the BOSS contractor to perform. When these requests are within the scope of the contract, the contractor can usually proceed with the work. However, if the request exceeds the scope of the contract, the contractor needs to be aware that if it proceeds without the Contracting Officer’s formal approval the contractor risks not receiving compensation for the out-of-scope work. The U.S. Court of Federal Claims recently reminded contractors of this harsh reality.
In Baistar Mechanical, Inc. v. United States, a grounds maintenance contractor, was awarded a contract to maintain the Armed Force’s Retirement Home’s 270 acre grounds in Washington, D.C. The contractor alleged, among other things, that the Government ordered services outside the scope of the contract including services to plan and design a boiler plant, conversion of a hiking trail into a gravel trail, repairs to the hiking trail, providing an arborists report, and snow-related services. The Contracting Officer’s Representative ordered these services. The Contracting Officer never ordered the contractor to perform these services. The contractor then submitted a claim to the Contracting Officer, which was deemed denied, and then appealed to the U.S. Court of Federal Claims.
The Court dismissed the contractor’s claims because the Contracting Officer’s Representatives had no actual authority to bind the Government. The Court noted that the contractor is responsible for determining whether the ordering entity can bind the contractor. To the extent the contractor performed work outside of the scope of the contract, the Court held it was unrecoverable because the contractor had performed work without the consent of the Contracting Officer.
In order to ensure a potential for recovery, contractors need to confirm the Contracting Officer approves any potential out-of-scope contract work performed. When the customer requests work be performed and quickly, it can be difficult to say no. However, demanding formal direction from the Contracting Officer before proceeding can save money and trouble later.