You Can Perform Unasked-For Work Outside the Contract’s Scope, But Don’t Expect to Get Paid

The contractor performed work that wasn’t in the contract, and that the agency didn’t request. The contractor sought recovery under an unjust enrichment theory. The ASBCA rejected the claim. A contractor can’t just force a betterment on the agency.

Compendium International, Inc. v. Department of Justice, CBCA 6743

• Out-of-Scope Work – While performing, the contractor demolished and removed a restroom. The agency had not exercised an option for removal of the restroom, and the agency had not approved the demolition. Moreover, the contractor never sought a change order or additional money for the work before accepting final payment. The contractor built a new restroom in a different location. The agency thought the contractor built the new restroom at no cost to the government.
• The Claim – The contractor submitted a claim for costs associated with the restroom. The agency denied the claim. The contractor appealed to CBCA, alleging various theories, for defective specifications, differing site condition, and agency mismanagement.
• Claims Barred by Payment – The board noted fundamental problem with the claim: the contractor had submitted the claim after accepting final payment. By accepting final payment, the contractor had released the government from liability.
• Quantum Meruit – The contractor argued the while the it performed out-of-scope work, it should still be reimbursed under an unjust enrichment theory. The board reasoned that a contractor will not be paid for betterment in excess of contract terms.

The contractor is represented by Mark D. Johnson of Lanak & Hanna, P.C. The government is represented by Ashley Akers, Jimmy S. McBirney, and Mark E. Mandel of the Department of Justice.

–Case summary by Craig LaChance, Senior Editor

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