February 27, 2020 Procurement Lawyer

Equitable Adjustments for Volunteered Contractor Performance: Confusion about the Burden of Proof

by Steven W. Feldman

Steven W. Feldman is a retired attorney from the U.S. Army Corps of Engineers. The views expressed in this article are solely those of the author. Thanks to Gayla Feldman for her love and support and Adam Lasky and Clark Pendergrass for their comments.

Where the government, in defending a claim for an equitable adjustment, argues the contractor acted as a volunteer, I always thought the contractor simply had the burden of proof to show otherwise. As it turns out, this issue is more nuanced and there are conflicting approaches within the Federal Circuit and in its lower tribunals. To date, no court or board has remarked upon the split of authority or suggested a resolution of the precedents. This article will cover the following topics: the meaning of volunteered contractor effort; relation of the Anti-Deficiency Act; the strict and lenient approaches to volunteered contractor performance; “burden of proof” and “rebuttable presumption” explained; and the flaws in the lenient approach.

The Nature of Volunteered Contractor Effort

Settled law provides, “A contractor who acts as a volunteer cannot be paid for extra work which is furnished on its own initiative.”1 Where the work was neither required by the contract nor necessary as part of the agreement, the contractor has performed as a volunteer in a legal sense — absent the government’s directive or other authorization — and is not entitled to recover the costs of providing the extra goods or services.2 Moreover, a government inspector has no legal duty to stop or comment upon the volunteered effort and the government may accept that work without incurring any liability to the contractor.3

The policy for the volunteer rule is to protect the treasury from contractors that unilaterally decide to perform work beyond the government’s determined need.Thus, the contractor that voluntarily incurs extra expense for additional effort without authorization from the contracting officer does so at its own risk.5

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