In an ideal world, before performing work outside the scope of an existing contract, a contractor obtains written direction from the contracting officer as typically required by the contract and applicable regulations. However, as the COVID-19 pandemic has taught us, we do not live in an ideal world.

Situations often arise in which a contractor performs work before receiving written direction from the contracting officer or at the direction of another government representative. These incidents have only increased during the pandemic, with agency personnel assignments disrupted, contractors often performing from home and normal chains of communications thrown into disarray.

The lack of a formal directive from the contracting officer proves to be problematic when the government refuses to pay for the additional work, claiming the work was not authorized because only a contracting officer has the power to modify a contract. However, when faced with this scenario, a contractor may be able to establish entitlement to compensation for the work by showing the government ratified the otherwise unauthorized act.

Although courts have recognized ratification as a means to validate otherwise unauthorized changes for more than 50 years, there have been attempts to prevent a contractor from using ratification to recover additional compensation.

Read more from Law360, as Michelle Litteken explains the implications of ratification for government contractors. Subscription required.