APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
GRANTED, RESPONDENT’S CROSS-MOTION DENIED:
April 9, 2020
CBCA 6188, 6312
CROWLEY LOGISTICS, INC.,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
James Y. Boland of Venable LLP, Tysons Corner, VA; and Dismas N. Locaria and
Christopher G. Griesedieck of Venable LLP, Washington, DC, counsel for Appellant.
Matthew G. Lane and Samantha Ahrendt, Office of Chief Counsel, Federal
Emergency Management Agency, Department of Homeland Security, Washington, DC,
counsel for Respondent.
Before Board Judges SOMERS (Chair), BEARDSLEY, and LESTER.
LESTER, Board Judge.
In September 2017, when Hurricanes Maria and Irma tore through Puerto Rico and
the United States Virgin Islands (USVI), the Federal Emergency Management Agency
(FEMA), as required by its mission statement, quickly had to respond to the disasters to
reduce loss of life and property and to protect institutions of the United States. 
Unfortunately, when those hurricanes hit, FEMA did not have in place any contracts that


CBCA 6188, 6312 2
would allow it to ship equipment, goods, or other materials from the continental United
States (CONUS) to either Puerto Rico or the USVI to assist in its disaster-relief efforts.  The
closest prepositioned contract that it had in place was limited to shipments from Puerto Rico
to the USVI.  That indefinite delivery/indefinite quantity (IDIQ) contract was held by
Crowley Logistics, Inc. (Crowley), and had a price ceiling of only $4 million.
With no time to run a competition for CONUS-to-Puerto Rico and CONUS-to-USVI
shipping contracts, FEMA hurriedly expanded Crowley’s IDIQ contract on a sole-source
basis to add 101 Contract Line Item Numbers (CLINs) that would allow for the immediate
shipment of necessary disaster-relief materials to Puerto Rico and the USVI on barges that
Crowley would obtain for temporary use.  That modification also increased the price ceiling
of Crowley’s contract by $96 million—from $4 million to $100 million.  As a result of the
breadth of the disasters, FEMA quickly ran through the cost ceiling and more, but authorized
contracting officials within FEMA continually instructed Crowley to keep performing.
In the rush to modify Crowley’s IDIQ contract to get the services that FEMA
desperately needed, a FEMA contracting officer who had a warrant of contracting authority
limited to contract actions of $25 million or less executed the modification that expanded the
scope of the contract by $96 million.  Later, after several months of performance, FEMA
notified Crowley that there was a problem with the contract modification and that FEMA
needed supporting data to justify the costs that Crowley had been incurring.  Eventually,
authorized FEMA officials ratified what they said had been an unauthorized contract
commitment, using the express ratification procedures of Federal Acquisition Regulation
(FAR) 1.602-3 (48 CFR 1.602-3 (2017)), but, when doing so, effectively changed the pricing
terms in the written contract modification for eleven of the CLINs, reducing what FEMA was
willing to pay for barge shipment and stevedoring services under those CLINs.
Before the Board, Crowley complains that FEMA has improperly sought, unilaterally
and after the fact, to rewrite the pricing provisions of the contract modification.  On summary
judgment, and supported by an extensive set of joint stipulations of undisputed material facts,
it asks that we find the modification to be fully authorized and effective and that we order
FEMA to calculate what Crowley is owed by reference to the contract’s written pricing
terms.  Although we agree with FEMA that the contracting officer who executed the contract
modification did not hold a written warrant that would have allowed her to execute the
modification at issue, it is clear and indisputable that other contracting officers who held
unlimited warrants of contracting authority not only knew what was happening—if not at the
moment of the modification’s execution, very soon thereafter—but were also intimately
involved in ensuring that Crowley continued performing for months after realizing the
modification signatory error.  During that time, those authorized individuals never told
Crowley that there was a contract modification formation problem.

CBCA 6188, 6312 3
In the circumstances here, and based upon the stipulated undisputed facts, we find
that, to the extent that the original verbal directions to the contracting officer who executed
the modification were insufficient to “authorize” the modification on its date of execution,
other FEMA officials with unlimited contracting warrants implicitly ratified that
modification through their conduct, long before FEMA engaged in an “express” ratification
action that purported to modify the agreement that FEMA had already made.  The contract
modification is enforceable as written.  FEMA must honor the payment terms that it
implicitly ratified and cannot, after the fact, unilaterally revise those terms.  For the reasons
discussed below, Crowley’s motion for partial summary judgment is granted, and FEMA’s
motion for summary judgment is denied.
Statement of Undisputed Facts
The following statement of facts is taken from the extensive joint stipulation of
undisputed material facts that the parties filed with the Board, except where otherwise noted:
The Contract as Originally Awarded
On August 30, 2016, FEMA, through one of its contracting officers, Alfredia Allen,
awarded Crowley contract no. HSFE70-16-D-0204 (the contract or contract-0204), an IDIQ
contract with a $4 million ceiling.  Under the contract, Crowley was to assist FEMA in
responding to disasters by providing shipping containers and intermodal transportation
services for the shipment of Initial Response Resources (IRRs) from Puerto Rico to various
locations in the USVI.  Joint Stipulation of Facts (JSF) ¶¶ 1, 4; Appeal File, Exhibit 1 at 55.1 
IRRs include life-sustaining and other commodities, such as water, meals, cots, tarps, plastic
sheeting, blankets, infant and toddler kits, and fuel, that are needed to lessen damage before,
or to alleviate damage and suffering immediately after, a disaster.  JSF ¶ 5.  The contract had
an initial one-year contract period and four one-year option periods.
As originally written, contract-0204 contained eighteen CLINs for ocean
transportation and related services, such as “Surface line haul services of containerized IRR
commodities from original to port of embarkation,” “Container handling equipment (CHE)
services at the original location and port of embarkation,” “Expedite loaded containers, via
ocean vessel [from Puerto Rico] to assigned ports in the USVI,” “Retrograde fully loaded
containerized IRR commodities to origin loading facility,” and “Fuel cost.”  Exhibit 2 at 3-5. 
This set of CLINs repeated for each option year, and each CLIN had a fixed price per unit.
1 All exhibits referenced in this decision are found in the appeal file, unless
otherwise noted.

CBCA 6188, 6312 4
When services were needed, the Government was to issue a written task order under
which Crowley was to perform.  Exhibit 2 at 26; JSF ¶ 4.  The contract provided that, in the
event of any conflict between a task order and the contract, “this contract shall control.” 
Exhibit 2 at 26.  It further provided that Crowley would be obligated to “honor any order
exceeding the maximum order limitations” unless Crowley notified the ordering office within
thirty days after the order’s issuance of its intent not to ship the item or items.  Id. at 27.
Crowley’s contract was FEMA’s only prepositioned or advance contract to support
intra-island logistics in Puerto Rico and the USVI in the event of a disaster.  JSF ¶ 10.  As
originally written, the contract did not contemplate transportation of IRR or other supplies
from CONUS to either Puerto Rico or the USVI.  Id. ¶ 4.
Levels of Contracting Authority Within FEMA
In August 2017, FEMA’s Office of the Chief Procurement Officer (OCPO) was
headed by Chief Procurement Officer, Bobby J. McCane.  JSF ¶ 11.  Within OCPO’s
Acquisition Operations Division (AOD), there were two Deputy Directors, each of whom
headed one of AOD’s two “sides”:  Darrien Demps was the Deputy Director for Disaster
Operations within AOD, which the parties refer to as the “disaster side,” and Lester Ingol
was the Deputy Director for Preparedness and Internal Operations within AOD, the
“non-disaster side.”  JSF ¶ 12.  Because the position of AOD Director was vacant in the fall
of 2017, both Mr. Demps and Mr. Ingol reported directly to Mr. McCane’s deputy.  Id.
Ms. Allen, the contracting officer who executed contract-0204, worked in the Incident
Support Section (ISS) on the disaster side of AOD.  JSF ¶ 13.  Her Section Chief was
Carolyn Ward.  Ms. Ward’s immediate supervisor was ISS Branch Chief Sam K. Ansani. 
Mr. Ansani reported directly to Mr. Demps.  Id.
In the fall of 2017, Ms. Ward, Mr. Ansani, Mr. Demps, Mr. Ingol, and Mr. McCane
all had unlimited contracting officer warrants.  JSF ¶ 14; Exhibit 81.  Ms. Allen’s contracting
officer warrant authority was limited to $25 million.  JSF ¶ 15; Exhibit 13 at 3.  Ms. Allen’s
immediate supervisors were aware at that time of the limit on Ms. Allen’s contracting
authority.  See JSF ¶ 16.
The 2017 Hurricanes
During a one-month period beginning August 25, 2017, three separate hurricanes
caused widespread damage to and/or destruction of critical infrastructure and property that
required immediate action by FEMA:  Hurricane Harvey hit Texas on August 25, Hurricane
Irma hit the USVI on September 6, and Hurricane Maria hit Puerto Rico (as well as the

CBCA 6188, 6312 5
USVI) on September 20, 2017.  Between August 25 and September 20, 2017, the President
issued eleven emergency and disaster declarations, including DR-4335 (Irma, the USVI),
DR-4339 (Maria, Puerto Rico), and DR- 4340 (Maria, the USVI).  JSF ¶ 19.  The three
hurricanes, coming so close in time to one another and across such a wide geographic area,
presented significant operational challenges for FEMA’s response and recovery effort.  Id.
¶ 20.
At the time, FEMA did not have in place any contracts that would allow FEMA to
transport materials directly from CONUS to either Puerto Rico or the USVI.  The only
contract that it had in place was Crowley’s, which was, according to its terms, limited to the
transport of IRRs between Puerto Rico and the USVI.  JSF ¶ 4.
Initial Contracting Actions in Response to Irma and Maria
On August 31, 2017, before Hurricane Irma had made landfall, FEMA’s Logistics
Management Directorate (LMD) requested that Ms. Allen use Crowley’s contract to
preposition an IRR package to the USVI, to be shipped from Puerto Rico, based upon Irma’s
projected storm path.  JSF ¶ 22.  The next day, Ms. Allen issued a Notice to Proceed (NTP)
authorizing Crowley “to activate support operations to preposition FEMA Containers from
the FEMA Distribution Center in Puerto Rico to the US Virgin Islands” in accordance with
the terms of Crowley’s contract, with a period of performance from September 1 to 15, 2017,
not to exceed $46,000.  Exhibit 16 at 1; see JSF ¶ 23.  Crowley proceeded with performance. 
JSF ¶ 25.  The actual task order for the work was not issued until September 30, 2017,
executed by Ms. Allen.  Exhibit 7.
After Irma hit the USVI on September 6, 2017, FEMA’s Emergency Support Function
(ESF) partner agencies began approaching LMD and Crowley for support in moving
commodities from CONUS to the USVI, including a one-time shipment of General Services
Administration (GSA) vehicles from New Jersey.  JSF ¶¶ 26, 27.  None of the ESFs had a
support plan or prepositioned contract in place for transportation services from CONUS to
a location outside the continental United States (OCONUS).  Id. ¶ 26.  As a result of the
urgent and compelling nature of the need, and the lack of an existing contract for such
shipments, Ms. Allen sought permission from AOD’s disaster-side section, Mr. Demps, to
issue an NTP to Crowley for CONUS-to-USVI shipments, supported by funding document
WN00697Y2017T, with an “[e]stimated cost” of $8 million.  Id. ¶ 28; Exhibit 54 at 2.  By
email dated September 6, 2017, Mr. Demps told Ms. Allen to issue a verbal order to
Crowley, using the existing contract, “to transload palletized cargo into containers, load
containers onto vessels and deliver containerized commodities [from CONUS] to affected
areas in Puerto Rico and the [USVI],” but to “submit the completed files for review within
3 days.”  Exhibit 54 at 1-2; see JSF ¶ 29.

CBCA 6188, 6312 6
Later on September 6, 2017, Ms. Allen sent an email to Crowley (on which Ms. Ward
was copied), indicating that “[t]his NTP authorizes Crowley Logistics to provide port
operation services in support of Hurricane Irma” in an amount not to exceed $8 million, with
an “effective period” from September 6, 2017, to February 2, 2018.  Exhibit 16 at 3; see JSF
¶ 30.  She indicated that a task order would be issued within three days, Exhibit 16 at 3,
although the record does not appear to indicate whether it was ever issued.  Crowley
immediately proceeded with performance under the NTP.  JSF ¶ 31.  Further, on September
15, 2017, Ms. Alfredia confirmed by email that FEMA was expanding the task order to add
inland transportation within St. Thomas, as directed by FEMA representatives.  Exhibit 16
at 18.
Hurricane Maria’s devastation of Puerto Rico on or around September 20, 2017,
generated an urgent need for FEMA to provide a full suite of transportation and logistical
services to the disaster area, including transportation of a significant quantity of supplies
from CONUS to OCONUS.  JSF ¶ 32.  The increased contracting demands from Hurricanes
Harvey, Irma, and Maria were severely taxing FEMA’s acquisition process and contracting
personnel, including contracting officers, within the OCPO.  Appellant’s Statement of
Additional Facts (SAF) ¶ 8; Respondent’s Statement of Genuine Issues (SGI) ¶ 8.  Ms. Allen
was working approximately forty to sixty hours over and above her usual work week to
ensure that support made it to affected areas as quickly as possible, Mr. Ansani was working
fifteen to sixteen hour days, and the entire OCPO team was working very long hours.  SAF
¶ 9; SGI ¶ 9.  Ms. Allen has testified that the mindset at the time, given the overwhelming
demands on the contracting office, was “just get it done, get it done, get it done.” 
Appellant’s Summary Judgment Reply Brief Exhibit E at 2.
As part of that effort, Ms. Allen continued to issue NTPs and sign contract
modifications to Crowley’s contract to have Crowley proceed with the provision of services
in September and October 2017.  JSF ¶ 33.  By the end of September 2017, Crowley was
providing all-inclusive transportation and shipping services between CONUS, Puerto Rico,
and the USVI ports of operation to support FEMA’s response and recovery operations in the
USVI and Puerto Rico.  Id. ¶ 34.  As early as September 2017, Ms. Ward, Mr. Ansani, Mr.
Ingol, and Mr. Demps were aware that Crowley was providing transportation services from
CONUS to OCONUS.  Id. ¶ 35.
Modification P00004
In or around mid- to late September 2017, Ms. Allen determined that the scope of
Crowley’s contract, as it was then being used, had exceeded the purpose and intent of the
initial award to a point where the contract should be re-competed, and she began developing
a proposed sole source contract award to Crowley: contract no. HSFE70-17-C-0200

CBCA 6188, 6312 7
(contract-0200).  JSF ¶ 36.  She made several attempts to update a draft Justification and
Approval (J&A) document for contract-0200 and to establish a realistic contract ceiling for
approval, and, in her draft packet for the proposed contract, she recommended a new ceiling
of $250 million due to the expanded volume of services required following Hurricane Maria. 
Id. ¶ 37.  Mr. Ansani, the ISS Branch Chief, recommended that Ms. Allen reduce the
proposed contract-0200 ceiling to $100 million.  Id. ¶ 39.  A week later, having received no
feedback or approval for the J&A, Ms. Allen “requested permission to incorporate a scope
change into [Crowley’s original contract, contract 0204].  Id. ¶ 40.  At that time, Mr. Ingol,
the Deputy Director for the non-disaster side of AOD, was serving as the acting Deputy
Director for Disaster Operations in the absence of its actual Deputy, Mr. Demps.  Declaration
of Lester Ingol ¶ 10 (Exhibit 3 to Respondent’s Summary Judgment Motion).  Deputy
Director Ingol authorized the requested change in scope.  JSF ¶ 40; see Exhibit 13 at 3.
On October 24, 2017, Ms. Allen issued modification P00004 to contract-0204, which
purported to do the following:
1. To expand the scope of the contract to include a full suite of
transportation and logistics services, including air transport, leasing of
ocean shipping containers, providing intermodal transportation services
of containerized commodities, cross-dock services, ocean
transportation, Container Handling Equipment (CHE) at ports of
embarkation and debarkation, surface line haul services, and drayage. 
These services are required to support FEMA response and recovery
efforts for DR-4339 (Puerto Rico) and DR-4340 (USVI).
2. Increase the contract ceiling from $4,000,000 to $100,000,000.
3. Add Contract Line Item Numbers (CLINs) 1023 to 1132.
4. To incorporate supplemental scope requirements.
5. [T]o incorporate FAR Clause[] 52.232-18, Availability of Funds.
Exhibit 8 at 1-2.  The modification, in addition to expanding the contract’s scope to provide
for transport services between CONUS, Puerto Rico, and the USVI, also extended the
contract performance period through February 5, 2018.  JSF ¶¶ 41, 42.  Relevant for purposes
of these consolidated appeals, the following were included in the added CLINs:
CLINs 1072 through 1076, which identified a specific fixed firm unit price for
“Ocean Transportation Dedicated Barge First Voyage” of the “Atlantic

CBCA 6188, 6312 8
Trader/McAllister (154 FEU container minimum)” (CLIN 1072),
“Baltimore/Allie B (242 FEU container minimum)” (CLIN 1073),
“Charleston/Sisters (158 FEU container minimum)” (CLIN 1074),
“Chesapeake Trader/Kristen McAllister (224 FEU container minimum)”
(CLIN 1075), and “Elizabeth/Ivory Coast (315 FEU container minimum)”
(CLIN 1076).  See Exhibit 8 at 11-12.
CLINs 1077 through 1083, which identified a specific fixed firm “per
container” unit price for “Dedicated Barge Stevedoring” involving
“USLoad/Download” (CLIN 1077), “Puerto Rico Load/Download (CLIN
1078), “USVI Load/Download” (CLIN 1079), “Per Gang Hour” (CLIN 1080),
“Double Time” (CLIN 1081), “Triple Time” (CLIN 1082), and “Extra Labor”
(CLIN 1083).  See Exhibit 8 at 12-13.
Before the modification was issued, Ms. Allen and Crowley had discussed both the structure
and the pricing of the new CLINs, including that the pricing for the dedicated barge services
would use a per container rate.  JSF ¶ 43.  
Ms. Allen signed modification P00004 upon behalf of FEMA, id. ¶ 41, even though
her warrant of contracting authority was limited to $25 million.  Nevertheless, Ms. Allen
copied Mr. Ingol on her email to Crowley transmitting the executed copy of modification
P00004.  Respondent Answer ¶ 41; Complaint Exhibit 15 at 399.  Crowley also copied Mr.
Ingol on an email the following day in which Crowley provided cost information for the
preparation of a task order using CLINs added through modification P00004.  Exhibit 17
at 65.  In its briefing, FEMA acknowledges that Deputy Director Ingol, while standing in for
Deputy Director Demps, authorized Ms. Allen to increase the contract ceiling from $4
million to $100 million, but asserts that Mr. Ingol did not know that additional CLINs were
included in modification P00004 and thought that Ms. Allen, if she lacked sufficient
contracting authority to execute the modification, would work with a contracting officer who
had that authority.  Respondent’s Summary Judgment Motion at 10 & n.8.  FEMA asserts
that no evidence suggests that Mr. Ingol ever opened Ms. Allen’s email or the pdf attachment
containing modification P00004.  Id. at 22.
On or about October 27, 2017, after modification P00004 had already been executed,
Ms. Allen submitted to Ms. Ward for review the proposed J&A reflecting what Ms. Allen
intended as a ceiling increase to contract-0204, although, according to FEMA, Ms. Ward may
have thought that it was to support funding for a not-yet-awarded contract-0200.  JSF ¶ 44;
Exhibit 13 at 3.  At about the same time, the United States Army Corps of Engineers
(USACE) approached FEMA for help in moving power restoration equipment to Puerto
Rico, and Ms. Allen authorized Crowley to do that urgent work.  On November 7, 2017, Ms.

CBCA 6188, 6312 9
Ward instructed Ms. Allen to reduce the ceiling listed in the J&A to $61.5 million so that it
could quickly be approved “in-house,” meaning within FEMA and without the need for
additional Department of Homeland Security (DHS) approvals.  Id. ¶ 45.  The next day, Ms.
Allen informed Crowley that the contract-0204 ceiling would have to be reduced to $61.5
million, but Crowley responded that it was already near $61.5 million in costs incurred.  Id.
¶¶ 46, 47.  Ms. Allen immediately issued a verbal stop work order “because [she] didn’t want
the contractor to incur additional costs and exceed the ceiling.”  Id. ¶ 48.  She also notified
Ms. Ward of Crowley’s burn rate—the rate at which costs were accruing—with Crowley
having already expended $47.9 million and forecasting an additional $31.3 million in costs
by November 17, 2017.  Exhibit 13 at 3.  Ms. Ward provided that information to Mr. Demps,
who had returned to the office.  JSF ¶ 49.
Because of FEMA’s urgent need for services, Mr. Demps instructed Ms. Allen on
November 9, 2017, to direct Crowley immediately to resume operations.  JSF ¶ 50.  In a
separate email that same day to OCPO’s Ombudsman, Mr. Demps stated that “[w]e need to
communicate to Crowley to continue operations, we can’t have operations cease.”  Id. ¶ 50
(quoting Exhibit 61 at 1490).  Ms. Allen emailed Crowley, copying Mr. Demps and the
OCPO Ombudsman, stating that “Crowley is authorized to resume transportation logistics
operations in support of DR-4339 (Puerto Rico) under [contract-0204] effective immediately. 
The contract ceiling remains at $100 million.”  Id. ¶ 51 (quoting Exhibit 62 at 1499).
Contracting Authority Questions and Responses
FEMA contends that it was not until November 9, 2017, that Ms. Ward became aware
that Ms. Allen was taking actions above and beyond her warrant of contracting authority. 
FEMA contends that Mr. Demps did not become aware of that fact until November 15, 2017. 
The record contains no evidence that, upon learning that Ms. Allen allegedly was acting
beyond her warrant of contracting authority, either Ms. Ward or Mr. Demps directed that
Crowley stop work or that anyone issue a stop work order to Crowley.  Nor is there any
evidence in the record that anyone told Crowley at that time that there was a problem in the
execution of modification P00004.
By (at the latest) November 28, 2017, Mr. McCane became aware of Crowley’s burn
rate when Mr. Demps informed Mr. McCane that the “Crowley IDIQ with a $4M ceiling is
expected to grow to $160M.”  JSF ¶ 52.  On December 8, 2017, Mr. McCane, Mr. Ingol, and
OCPO’s Ombudsman received a copy of Crowley’s weekly expenditures.  Id. ¶ 53.
On December 19, 2017, Ms. Allen informed Crowley that her J&A for an increase to
the $100 million contract ceiling was “being reviewed for approvals and signatures” and that,
once approved, a bilateral contract modification would be prepared.  JSF ¶ 55; Exhibit 20

CBCA 6188, 6312 10
at 11.  In emails on January 10 and 17, 2018, Crowley requested confirmation from Ms.
Allen that it would have written authorization to continue to operate beyond contract-0204’s
$100 million ceiling, indicating that its costs appeared already to have exceeded that ceiling
and projecting another $15 million in costs within the following few weeks.  JSF ¶ 56;
Exhibit 20 at 10.  By email dated January 18, 2018, Ms. Allen responded that “[t]his is to
inform you that FEMA intends to extend the current task order to reflect a new period of
performance date of April 18, 2018.”  JSF ¶ 57; Exhibit 20 at 18.
At about the same time, Mr. McCane directed Mr. Demps to suspend Ms. Allen’s
warrant of contracting authority.  JSF ¶ 54.  Mr. Demps did so on January 25, 2018.  Id.  The
record does not indicate that Crowley was informed of the suspension.
On February 1, 2018, Crowley received for its signature a bilateral modification to
contract-0204 that would extend performance to April 18, 2018, but did not increase the $100
million ceiling.  Exhibit 21 at 1.  Although Crowley signed the modification, it asked Ms.
Allen about the ceiling increase.  JSF ¶ 58.  Ms. Allen responded to Crowley’s email, stating
that the J&A to increase the ceiling had been submitted to the OCPO and that she hoped
everything would be approved within the next few days.  Exhibit 21 at 3.  Nevertheless, on
February 6, 2018, Crowley was informed that Ms. Ward was replacing Ms. Allen as the
contracting officer, that Crowley should “stop work” based upon a lack of approved funding,
and that Crowley should provide details of all invoices to date, pending invoices, and
projections through April 18, 2018.  Id. at 7, 9.  Crowley provided responsive information
later that day, and, on February 7, 2018, Ms. Ward asked for “full cost proposals and any
documentation that will confirm that [Crowley’s] price is fair and reasonable” in relation to
the CLIN pricing of contract-0204.  Id. at 8; see JSF ¶ 59.  She also asked for any
documentation showing that Crowley was authorized to exceed the contract-0204 ceiling. 
Exhibit 21 at 15.
After providing Ms. Ward information responsive to her request, Crowley contacted
Mr. Ansani on February 8, 2018, to discuss contract-0204.  In an email communication
memorializing the conversation, Crowley recognized that Mr. Ansani was waiting for
Crowley’s cost proposal to finalize a fair and reasonable price for the latest task order and
that, once received, he intended to issue a new task order to confirm continuing contract
performance.  Exhibit 21 at 20.  In addition, though, Crowley indicated that, “[p]er our
discussion of Crowley’s continuing contract performance, please provide concurrence and
approval for Crowley to continue to operate under [contract-0204].”  Id.  Mr. Ansani, in a
responsive email, stated, “You have my concurrence relative to the email below.”  Id.; JSF
¶ 60.

CBCA 6188, 6312 11
On February 22, 2018, in response to an inquiry from Crowley about what it viewed
as ambiguities in direction during meetings with Ms. Ward and her team, Mr. Ansani
provided the following statement to Crowley:
Yes, please continue performance but not to exceed the $210M agreed upon
funding.  As of today barring any unforeseen circumstances, we are on track
for the February 28 award date.  Please accommodate any reasonable request
from [Ms. Ward] to make sure we meet our target date.  If you have any
questions, please circle back with me.
Exhibit 21 at 37.
On February 28, 2018, Ms. Ward sent Crowley another email, with a copy to Mr.
Ansani,  indicating that performance had to end on March 7, 2018, with a total ceiling of
$129 million:
Just wanted to restate what was previous[ly] discussed.  The period of
performance will end on 07 March for a total $129M.  If you do any work that
exceed[s] this value you will be doing this at your own risk.  It is an
unauthorized commitment.
Exhibit 21 at 80; see JSF ¶ 61.
By email on March 7, 2018, Crowley asked Mr. Demps, with a copy to Mr. Ansani,
to address Ms. Ward’s “stop work” order, which would preclude any further work under
contract-0204 beyond that day, and to tell Crowley whether it should continue working:
An immediate work stoppage would be very disruptive to the ongoing recovery
efforts on the Island.  In order to avoid that we request that you or someone
with the appropriate authority provide us with written authorization to continue
work under the previously agreed upon pricing, terms and conditions.
Exhibit 24 at 1; see JSF ¶ 62.  Less than forty minutes later, Mr. Ansani responded as
follows: “We are working on a resolution as discussed with Mr. Demps, please continue
performance as directed.”  Exhibit 24 at 1; see JSF ¶ 63.  Crowley continued to perform.
Contract Payments and Express Ratification
When issuing modification P00004 back in October 2017, increasing the
contract-0204 ceiling to $100 million and expanding the scope of work under the contract,

CBCA 6188, 6312 12
Ms. Allen asked Crowley to invoice FEMA in increments of no more than $25 million so that
she could issue task orders, for payment purposes, that were within her contracting warrant
authority.  JSF ¶ 64.
In accordance with that request, Crowley submitted an “invoice summary” on October
25, 2017, of the first $25 million in costs that it had incurred or would incur for the expanded
scope of work under contract-0204, and, on October 30, 2017, Ms. Allen issued a task order
in that amount.  JSF ¶¶ 65, 66.  Crowley submitted its invoice for that task order of just
below $25 million on November 1, 2017, which FEMA subsequently paid.  JSF ¶¶ 67, 69. 
On November 8, 2017, Crowley submitted another “invoice summary” of just below $25
million, which resulted in another task order issued December 6, 2017, JSF ¶¶ 68, 70,
followed by Crowley’s invoice and FEMA’s payment.  JSF ¶¶ 71, 72.
In March 2018, two months after FEMA had suspended Ms. Allen’s contracting
authority, FEMA began gathering facts and documents to begin a ratification process under
FAR 1.602-3 to pay Crowley for services that it had performed in response to Hurricanes
Irma and Maria and for which it had subsequently invoiced FEMA.  JSF ¶ 74.  FEMA’s
OCPO assigned Mr. Demps to serve as the contracting officer for purposes of ratification and
requested the assistance of a DHS price analyst to review the CLIN prices included in
modification P00004.  Id. ¶ 75.  On April 6, 2018, based upon Mr. Demps’ recommendation
and following discussions between FEMA and Crowley, OCBO’s Chief Procurement
Officer, Mr. McCane, ratified and approved payment of $113,912,322.65 covering charges
that FEMA found fair and reasonable, as contemplated by Federal Acquisition Regulation
(FAR) 1.602-3(c)(4) (48 CFR 1.602-3(c)(4) (2017)).  JSF ¶ 78; Exhibit 13.  On October 10,
2018, after further discussions between FEMA and Crowley, Mr. McCane ratified and
approved an additional payment of just over $40 million.  JSF ¶ 81; Exhibit 23.
FEMA continues to question the fairness and reasonableness of the pricing in CLINs
1072 through 1083.  JSF ¶ 82.  FEMA’s ratification payments include an amount that FEMA
believes contains a fair and reasonable payment for CLINs 1072 through 1083, but in a lesser
amount than that for which Crowley invoiced.
Procedural History Before the Board
On April 27, 2018, after Mr. McCane initially ratified in writing and approved
payment of some of Crowley’s requested costs, Crowley submitted a certified claim to Ms.
Ward, as the responsible FEMA contracting officer, seeking payment of an additional
$60,391,770.74, inclusive of interest and penalties under the Prompt Payment Act (PPA), 31
U.S.C. § 3903 (2012), but exclusive of interest under the Contract Disputes Act (CDA), 41

CBCA 6188, 6312 13
U.S.C. §§ 7101-7109.  Crowley appealed the contracting officer’s “deemed denial” of that
claim to the Board on June 27, 2018, which the Board docketed as CBCA 6188.
On June 28, 2018, Crowley submitted a new invoice for additional incurred costs to
FEMA in the amount of $17,682,180.46, which, viewing the invoice as in dispute, it
converted into a certified claim on July 13, 2018.  Although FEMA approved payment of
some claimed costs in its express ratification action on October 10, 2018, it did not approve
all of the claimed costs or issue a decision on the claim.  On November 20, 2018, Crowley
appealed the “deemed denial” of its second claim, which the Board docketed as CBCA 6312. 
The Board then consolidated CBCA 6188 and 6312.
After several months of discovery during which the parties took several fact witness
depositions, the parties jointly requested that the Board suspend remaining discovery, at least
temporarily, and establish a briefing schedule for partial summary judgment motions on
several threshold legal issues.  The Board granted the parties’ joint request, and the parties
subsequently submitted eighty-four paragraphs of stipulated undisputed material facts.  Based
largely upon those stipulated facts, Crowley sought partial summary judgment on its right to
enforce the terms of modification P00004, as written, arguing (1) that Ms. Allen was
authorized to issue the modification and (2) that, even if she was not, other authorized
contracting officers within FEMA implicitly or institutionally ratified it.  FEMA filed its own
motion for summary judgment, arguing (1) that modification P00004 is unenforceable
because its signatory, Ms. Allen, lacked contracting authority to execute it and (2) that
FEMA’s decision expressly to ratify its obligation to pay Crowley a fair and reasonable
amount for the work that Crowley performed bars an implicit or institutional ratification
argument.  Following full briefing, the Board conducted oral argument on the parties’
motions.
Discussion
I. Standard for Summary Judgment
“Summary judgment is only appropriate where there is no genuine issue of material
fact.”  Optimum Services, Inc. v. Department of the Interior, CBCA 4968, 19-1 BCA
¶ 37,383, at 181,734.  Nevertheless, “[o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.” 
Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).  “It is not the
judge’s function ‘to weigh the evidence and determine the truth of the matter,’” id. (quoting
Anderson, 477 U.S. at 249), and “[a]ll justifiable inferences and presumptions are to be
resolved in favor of the nonmoving party.”  Id.  The extensive joint stipulations of facts that
the parties worked together to prepare are very helpful to the resolution of these motions.

CBCA 6188, 6312 14
II. Whether Modification P00004, When Executed, Was Authorized
A. Contracting Authority
In Federal Crop Insurance Co. v. Merrill, 332 U.S. 380 (1947), the Supreme Court
established that the Government is bound by the actions of a government employee only to
the extent that the employee in question had “actual authority” to bind the Government in
contract:
The Government may carry on its operations through conventional executive
agencies or through corporate forms especially created for defined ends. 
Whatever the form in which the Government functions, anyone entering into
an arrangement with the Government takes the risk of having accurately
ascertained that he who purports to act for the Government stays within the
bounds of his authority.  The scope of this authority may be explicitly defined
by Congress or be limited by delegated legislation, properly exercised through
the rule-making power.  And this is so even though, as here, the agent himself
may have been unaware of the limitations upon his authority.
. . . .
The oft-quoted observation . . . that “Men must turn square corners when they
deal with the Government,” does not reflect a callous outlook.  It merely
expresses the duty of all courts to observe the conditions defined by Congress
for charging the public treasury.
Id. at 384-85 (emphasis added; citations omitted).
Although a government employee acting with “actual authority” can bind the
Government in contract, the concept of “apparent authority,” which is generally sufficient
to bind a private litigant in contract, cannot be applied against the Government:
It is a well recognized principle of procurement law that the contracting
officer, as agent of the executive department, has only that authority actually
conferred upon him by statute or regulation.  If, by ignoring statutory and
regulatory requirements, he exceeds his actual authority, the Government is
not estopped to deny the limitations on his authority, even though the private
contractor may have [relied] on the contracting officer’s apparent authority
to his detriment, for the contractor is charged with notice of all statutory and
regulatory limitations.

CBCA 6188, 6312 15
CACI, Inc. v. Stone, 990 F.2d 1233, 1236 (Fed. Cir. 1993) (emphasis added) (quoting
Prestex, Inc. v. United States, 320 F.2d 367, 371 (Ct. Cl. 1963)); see Federal Crop
Insurance, 332 U.S. at 384; Jascourt v. United States, 207 Ct. Cl. 955, 956 (1975). 
“Apparent authority differs from express [actual] authority because it does not result from
the principal’s actual grant of authority,” but instead results when the principal seems to
acquiesce in an agent’s performance of a function, purportedly upon behalf of the principal,
without taking affirmative action to stop it.  Strann v. United States, 2 Cl. Ct. 782, 789
(1983).
Before a government employee can be found to have express “actual authority” to
bind the Government in contract, he or she must have been delegated specific authority either
by Congress or through agency rule-making.  City of El Centro v. United States, 922 F.2d
816, 820 (Fed. Cir. 1990).  Specifically, “[a] government employee possesses express
[actual] authority to bind the government only when the Constitution, a statute, or a
regulation grants it in unambiguous terms.  Howard v. United States, 31 Fed. Cl. 297, 312
(1994).  Authority cannot be “inferred” from the absence of an express limitation on
authority, but instead must be explicitly delegated.  El Centro, 922 F.2d at 820.
In general, “[a]uthority and responsibility to contract for authorized supplies and
services are vested in [each] agency head.”  Federal Acquisition Regulation (FAR) 1.601
(48 CFR 1.601 (2017)).  Each agency head has delegated that authority to the heads of each
contracting activity within that agency, who, in turn, have delegated their authority to specific
contracting officers, each of whom is appointed through an individual “Certificate of
Appointment,” Standard Form (SF) 1402.  FAR 1.601, 1.603-3.  Each “Certificate of
Appointment,” or contracting officer’s “warrant” of authority, specifies the scope of that
contracting officer’s actual authority to contract upon behalf of the Government:
Contracting officers have authority to enter into, administer, or terminate
contracts and make related determinations and findings.  Contracting officers
may bind the Government only to the extent of the authority delegated to them. 
Contracting officers shall receive from the appointing authority (see 1.603-1)
clear instructions in writing regarding the limits of their authority. 
Information on the limits of the contracting officers’ authority shall be readily
available to the public and agency personnel.
FAR 1.602-1 (emphasis added).
Ultimately, it is the contractor’s burden to show that the government employee upon
whose statements or actions it relied had actual authority to bind the Government to the

CBCA 6188, 6312 16
contract at issue.  EWG Associates, Inc. v. United States, 231 Ct. Cl. 1028, 1029 (1982);
Llamera v. United States, 15 Cl. Ct. 593, 597 (1988).
B. Ms. Allen’s Written Warrant Authority
Neither party disputes that Ms. Allen’s “Certificate of Appointment” was limited to
contract awards of $25 million or less.  FEMA contends that, because modification P00004
purported to increase the contract-0204 ceiling by $96 million, the entire modification
(including both its new cost ceiling and its 101 newly added CLINs) is unauthorized and,
when it was executed, unenforceable.  Crowley disagrees, arguing that modification P00004
did not obligate FEMA to order any services or to spend any money, making it essentially
a non-monetary modification.  By signing modification P00004, Crowley argues, Ms. Allen
was simply creating a contract vehicle through which other contracting officers with less
limited authority could order services from Crowley by issuing task orders.  Oral Argument
Transcript at 33.  It is the task orders issued under the IDIQ contract, Crowley asserts, that
obligate funding, making the level of Ms. Allen’s written contracting authority irrelevant to
the enforceability of the modification.  Further, even if the increased dollar ceiling in
modification P00004 was beyond Ms. Allen’s written authority, Crowley argues, there should
be no question that Ms. Allen was authorized to add CLINs to contract-0204 because each
CLIN, considered individually, was far below $25 million.
We cannot agree with Crowley’s attempt to divide the contract modification into
separate pieces for purposes of evaluating the contracting officer’s authority.  We recognize,
as Crowley argues, that an IDIQ contract like contract-0204 only requires the Government
to purchase “a stated minimum quantity of supplies or services”—under contract-0204, that
minimum was $5000, an amount that FEMA met in 2016—and that, once fulfilled, the
Government has no further legal obligation to purchase anything more.  Travel Centre v.
Barram, 236 F.3d 1316, 1319 (Fed. Cir. 2001).  Nevertheless, the issue here is whether a
contracting officer can enter into a contract, or modification, with a ceiling that, if all
potential purchases were made, exceeds that contracting officer’s warrant.  In this case, the
determination of whether a FEMA contracting officer’s written warrant authorizes a
particular contract action is guided by DHS Acquisition Workforce Policy Number
064-04-011 (revision 00), titled “Contracting Officer Warrant Program” (May 24, 2012),
which applies to FEMA.  That policy considers “the total potential contract ceiling” as the
dollar value of an initial contract award or a subsequent contract modification:
Warrant Authority Levels: The warrant authority levels specified in Attach 2,
Tables 1-1 and 1-2 are based on the dollar value of the individual transaction
(e.g., contract, modification, task/delivery order, and supplemental agreement). 
For example:

CBCA 6188, 6312 17
1. Initial Contract Award:  If the basis of award involves evaluating
options and/or award terms, the dollar value of the individual
transaction must include the base period and all option periods, the
award terms, and the total potential contract ceiling to determine the
warrant level required for award.
2. Modifications and Supplemental Agreements:  During contract
administration, if an action includes both additions and deductions, the
aggregate, absolute value of the changes determines the warrant level
required (e.g., the value of an action that adds $35,000 of work and
deducts $80,000 is $115,000).
Respondent’s Summary Judgment Motion Exhibit 5 § V.F.  The agency’s written policy
requires us to look at the potential dollar value of the overall modification, not the amount
of specific funding that modification P00004 actually, at the time that it was executed,
obligated FEMA to pay Crowley.  Crowley’s argument to the contrary would eviscerate the
limits that FEMA intended to place on Ms. Allen’s written contracting warrant.
Similarly, we must reject Crowley’s argument that, even if Ms. Allen lacked written
contracting authority to increase the contract-0204 ceiling to $100 million, she could still add
101 new CLINs to the contract.  The totality of those new CLINs far exceeded the $25
million limit on her written contracting authority.  If she lacked authority to issue the
modification, the entire modification fails, and we cannot rewrite it to salvage portions of it
while striking other portions.  See Comspace Corp., DOT BCA 3095, 98-2 BCA ¶ 30,037,
at 148,637-68 (finding that contracting officer whose warrant was insufficient to allow for
contract price increase lacked authority to modify the contract’s delivery terms).  The type
of contract reformation in favor of which Crowley is essentially arguing, through which we
would strike the ceiling increase but enforce the new CLINs, is beyond our authority.  See
Defense Systems Co., ASBCA 50918, 01-1 BCA ¶ 31,152, at 153,880 (2000) (“Reformation
is not intended to be a vehicle by which a court injects itself into the contracting process to
create the contract it determines is best for the situation.”).
C. Authority from Mr. Ingol
Although Ms. Allen lacked authority through her “Certificate of Appointment” to
issue modification P00004, she believed that she had obtained a verbal direction from Deputy
Director Ingol, who has a warrant with unlimited contracting authority, to issue that
modification.  Crowley believes that Mr. Ingol’s direction to change the scope of
contract-0204, coupled with the fact that Mr. Allen copied him on the email transmitting the
modification to Crowley, provides actual authority for the modification.  FEMA concedes

CBCA 6188, 6312 18
in its briefing that Mr. Ingol, while standing in for Deputy Director Demps, authorized Ms.
Allen to increase the contract ceiling from $4 million to $100 million.  Respondent’s
Summary Judgment Motion at 10.  Supported by a declaration from Mr. Ingol, though,
FEMA asserts that Mr. Ingol did not know that additional CLINs were included in
modification P00004 and that Mr. Ingol assumed that Ms. Allen, if she lacked sufficient
contracting authority to execute the modification, would work with a contracting officer who
had that authority.  Respondent’s Summary Judgment Motion at 10 & n.8.
We understand that, when the discussions that led to modification P00004 were
occurring, Mr. Ingol may have had less familiarity with the specifics of the disaster-side
office than Mr. Demps would have had if he had been available.  Given the crisis situation
that was emerging within AOD, however, and the fact that AOD had absolutely no contract
vehicles that would have allowed it to ship anything from CONUS to either Puerto Rico or
the USVI, it is difficult to understand how, in authorizing a scope change to contract-0204,
an expansion of the contract’s scope to include CONUS-to-OCONUS transport would not
have been known to be necessary.  Nevertheless, we are currently considering cross-motions
for summary judgment, and we can grant summary judgment only “where there is no genuine
issue as to any material fact (a fact that may affect the outcome of the litigation).”  Marine
Metal, Inc. v. Department of Transportation, CBCA 537, 07-1 BCA ¶ 33,554, at 166,175. 
In arguing that Mr. Ingol did not authorize modification P00004, FEMA has submitted a
declaration in which Mr. Ingol explains that he was only agreeing to a ceiling increase for
contract-0204 that would be approved, if necessary, by another contracting officer.  Ms.
Allen’s testimony reveals a very different understanding of her conversations with Mr. Ingol,
which resulted in her addition of CLINs to contract-0204 to allow Crowley to provide
CONUS-to-OCONUS transport.  We cannot resolve that factual dispute on summary
judgment.
Crowley also argues that, despite that factual dispute, there is no question that, when
Ms. Allen issued modification P00004, she provided a copy of it to Mr. Ingol and that Mr.
Ingol, at the very least, should have been aware of how Ms. Allen had acted on his verbal
order, of the contents of the modification, and of the fact that Ms. Allen, rather than a
contracting officer without an unlimited authority warrant, had signed it.2  Mr. Ingol’s failure
to take any action in response rejecting the modification should, Crowley asserts, show his
implicit authorization of the modification.
2 FEMA responds by asserting that no evidence suggests that Mr. Ingol ever opened
Ms. Allen’s email or the pdf attachment containing modification P00004.  Id. at 22.

CBCA 6188, 6312 19
The Court of Appeals for the Federal Circuit has recognized that, given the number
of people that the Federal Government employs, “federal expenditures would be wholly
uncontrollable if Government employees could, of their own volition, enter into contracts
obligating the United States.”  City of El Centro, 922 F.2d at 820.  Nevertheless, we
recognize that emergency circumstances requiring that immediate “action . . . be taken by
government agents to protect life and property” possibly can excuse some of the formalities
normally associated with documenting the contract formation process, id. at 821; see Cyrus
Contracting, Inc., IBCA 3232, et al., 98-2 BCA ¶ 29,755, at 147,468 (“Emergency
circumstances can alter normal contracting authority procedures when contract work done
is in good faith . . . .”), and that constructive, rather than actual, knowledge of the authorized
contracting officer can possibly be sufficient to find an action authorized.  Cyrus
Contracting, 98-2 BCA at 147,467-68.
Although the parties have provided extensive stipulations that might provide a basis
for deciding this authority issue here, some of the unusual circumstances at issue make us
wary of deciding this authority issue on summary judgment.  Further, our resolution below
of Crowley’s ratification argument renders a decision on this issue unnecessary. 
Accordingly, we decline to decide on summary judgment whether Mr. Ingol’s conduct and
constructive knowledge at the time that modification P00004 was executed were sufficient
to provide authorization.3
III. Whether FEMA Ratified Modification P00004
A. The Law of Ratification
There is no question that Crowley is entitled to payment for the work that it performed
under the guise of the expanded scope of contract-0204.  Even if FEMA had not told us that
it has recently made an express ratification of its obligation to pay for that work, “[w]here
a benefit has been conferred by the contractor on the government in the form of goods or
services, which it accepted, a contractor may recover at least on a quantum valebant or
quantum meruit basis for the value of the conforming goods or services received by the
government prior to the rescission of the contract for invalidity.”  United States v. Amdahl
Corp., 786 F.2d 387, 393 (Fed. Cir. 1986).  FEMA received tens of millions of dollars in
services from Crowley that helped FEMA with its mission during a crisis period.  In such
3 FEMA also argues that the absence of a documented written price reasonableness
analysis, as required by FAR 15.403-3(c), in and of itself bars the enforceability of
modification P00004.  Based upon our resolution below of Crowley’s ratification argument,
we need not address this issue.

CBCA 6188, 6312 20
circumstances, “it is only fair and just that the Government pay for goods delivered or
services rendered and accepted under it.”  Id. (quoting Prestex, Inc. v. United States, 320
F.2d 367, 373 (Ct. Cl. 1963)); see Alisa Corp., AGBCA 84-193-1, 94-2 BCA ¶ 26,952, at
134,217-19 (considering quantum valebant award under contract found to be illegal).
Crowley does not have to seek relief under the Amdahl line of cases because FEMA,
using the procedures set forth in FAR 1.602-3, has expressly ratified its commitment to pay
Crowley for the Puerto Rico and USVI work, albeit under a different payment scheme than
that set forth in modification P00004.  Under that FAR provision, an authorized official may
expressly ratify, or approve, a previous “unauthorized commitment,” which is defined as “an
agreement that is not binding solely because the Government representative who made it
lacked the authority to enter into that agreement on behalf of the Government.”  FAR
1.602-3(a).  For a ratification under FAR 1.602-3, the deciding official must find, among
other things, that “[t]he resulting contract would otherwise have been proper if made by an
appropriate contracting officer” and must “determine[] the price to be fair and reasonable.” 
FAR 1.602-3(c).  FEMA made those determinations, except that FEMA elected to modify
the unauthorized agreement, abolish the pricing terms for CLINs 1072 through 1083, and pay
only what it found “fair and reasonable” for those CLINs.  Rather than affirming the contract
modification as written, FEMA effectively has approved a quantum valebant award for
Crowley, based upon its view of what is fair and reasonable.
The monetary part of the parties’ present dispute centers on whether Crowley can
enforce the pricing terms of CLINs 1072 through 1083 as written in modification P00004 or
whether, instead, it must produce additional supporting cost documentation to establish that
FEMA’s view of what is “fair and reasonable” is too low.  Crowley believes that, because
various contracting officers with unlimited warrants implicitly ratified Ms. Allen’s
modification, all of the modification’s terms are fully enforceable, entitling Crowley to
payment for CLINs 1072 through 1083 under the pricing structure in the written
modification.  Alternatively, Crowley argues that FEMA institutionally ratified the contract,
as written.
“Ratification is the adoption of an unauthorized act resulting in the act being given
effect as if originally authorized,” and “unauthorized contracts become binding,” as written,
“if they are ratified.”  Parking Co. of America, GSBCA 7654, 87-2 BCA ¶ 19,823, at
100,296; see Schism v. United States, 316 F.3d 1259, 1289 (Fed. Cir. 2002) (“Ratification
is ‘the affirmance by a person of a prior act which did not bind him but which was done or
professedly done on his account, whereby the act, as to some or all persons, is given effect
as if originally authorized by him.’” (quoting Restatement (Second) of Agency § 82 (1958)). 
There is no one specific test that applies to every situation to determine whether ratification
has occurred, Americom Government Services, Inc. v. General Services Administration,

CBCA 6188, 6312 21
CBCA 2294, 16-1 BCA ¶ 36,320, at 177,079, but ratification ultimately must “be based on
a demonstrated acceptance of the contract.”  Harbert/Lummus Agrifuels Projects v. United
States, 142 F.3d 1429, 1434 (Fed. Cir. 1998).
There are two recognized means of implicitly ratifying an unauthorized agreement:
(1) implicit ratification at the individual level and (2) implicit ratification at the institutional
level.  Villars v. United States, 126 Fed. Cl. 626, 633 (2016).
Individual ratification involves approval of a previously unauthorized contract action
by one or more individuals who possess actual authority to contract.  Villars, 126 Fed. Cl. at
633.  “[S]uch ratification can only be based upon a full knowledge of all the facts upon which
the unauthorized action was taken.”  Harbert/Lummus Agrifuels, 142 F.3d at 1433 (quoting
United States v. Beebe, 180 U.S. 343, 354 (1901)).  “If there be want of [full knowledge],
though such want arises from the neglect of the principal, no ratification can be based on any
act of his.”  Id. (quoting Beebe, 180 U.S. at 354).  Yet, the “full knowledge” necessary to
support ratification may be constructive rather than actual.  Reliable Disposal Co., ASBCA
40100, 91-2 BCA ¶ 23,895, at 119,717; see Harbert/Lummus Agrifuels, 142 F.3d at 1433-34
(a contracting officer’s silence cannot constitute ratification “[i]n the absence of either actual
or constructive knowledge of the unilateral contract”); Americom Government Services, 16-1
BCA at 177,079 (constructive knowledge is sufficient to find ratification).  “Constructive
notice can be established where an official knew or should have known of a matter but
allowed it to continue.”  Americom Government Services, 16-1 BCA at 177,079; see Real
Estate Technical Advisors, Inc., ASBCA 53427, et al., 03-1 BCA ¶ 32,074, at 158,508 (2002)
(“Constructive knowledge can be found where it is fair to impute the subordinate’s
knowledge to the superior.”).  While “[s]ilence in and of itself” by those individuals who are
alleged to have ratified an agreement “is not sufficient to establish a demonstrated acceptance
of the contract,” Harbert/Lummus Agrifuels, 142 F.3d at 1433, “a ratifying official’s
constructive notice coupled with silence could amount to acquiescence or adoption of an
unauthorized act,” particularly if accompanied by “the Government’s tacit acceptance of
benefits.”  Healthcare Practice Enhancement Network, Inc., VABCA 5864, 01-1 BCA
¶ 31,383, at 154,985; see IBJ Schroder Bank & Trust Co. v. Resolution Trust Corp., 26 F.3d
370, 375 (2d Cir. 1994) (“Ratification also may be found to exist by implication from a
principal’s failure to dissent within a reasonable time after learning what had been done.”);
Guardian Safety & Supply LLC, ASBCA 61932, 19-1 BCA ¶ 37,333, at 181,563 (“If the
ratifying official has actual or constructive knowledge of a representative’s unauthorized act
and expressly or impliedly adopts the act, ratification will be found.” ); Restatement (Second)
of Agency § 94 cmt. a (“Silence under such circumstances that, according to the ordinary
experience and habits of men, one would naturally be expected to speak if he did not consent,
is evidence from which assent can be inferred.”).

CBCA 6188, 6312 22
Institutional ratification “is a distinct alternative remedy and creates a separate but
limited avenue for recovery in the absence of contractual ratification.”  Americom
Government Services, Inc. v. General Services Administration, CBCA 2294, 14-1 BCA
¶ 35,687, at 174,682; see Janowsky v. United States, 133 F.3d 888, 891-92 (Fed. Cir. 1998)
(discussing institutional ratification).  In limited and exceptional instances, the Government
may be bound to pay for otherwise unauthorized contract work, even if official or officials
carrying out the ratification do not themselves have express contracting authority, after the
Government received and retained benefits from the unauthorized contract.  Americom, 14-1
BCA at 174,682.  The ratifying official or officials must have knowledge of the work being
paid for and must, because of position or status, be among those who make ratification
reasonable.  Id.
B. The Intersection of Express and Implied Ratification
FEMA’s main position in opposition to implicit ratification is that, once FEMA made
an express ratification in this matter, implicit ratification became barred as a matter of law. 
As discussed above, in April and October 2018, FEMA expressly ratified the work that
Crowley performed under, although not the pricing set forth in, modification P00004.  FEMA
asserts that this case appears to be one of first impression because “[w]hat occurs when the
government conducts an express ratification and a contractor then seeks to recover additional
amounts under a theory of implicit ratification has never been addressed” before any tribunal. 
Respondent’s Motion for Summary Judgment at 19.  It asserts that the question before the
Board is “whether implicit ratification applies when an express ratification of the exact same
work in question has already been conducted.”  Respondent’s Reply at 5.
FEMA’s argument appears to be one tied to timing.  Although the actions by FEMA’s
contracting office superiors that could be considered to constitute a ratification of
modification P00004 all occurred between October 2017 and February 2018—dates that
precede FEMA’s express ratifications—FEMA asserts that “implicit ratification is a judicial
remedy” that tribunals created in order to pay contractors when there is no other viable
remedy and that, “[a]s such, [it] does not exist in any instance until a Court or Board
determines it exists.”  Respondent’s Reply at 11, 15.  According to FEMA, FEMA’s express
ratification of the work (but not the prices) under modification P00004 pre-dates any implicit
ratification that the Board might impose now and bars the Board from finding implicit
ratification.
We reject FEMA’s argument.  It is not the Board that implicitly ratifies a contract. 
Implicit ratification is a fact-based action that occurs when those with the authority to ratify
gain actual or constructive knowledge of an unauthorized contract commitment and then
affirmatively act, or fail to act, in a manner that implicitly adopts or approves that

CBCA 6188, 6312 23
commitment.  Villars, 126 Fed. Cl. at 633; Parking Co. of America, 87-2 BCA at 100,296-97;
see HNV Central River Front Corp. v. United States, 32 Fed. Cl. 547, 550 (1995)
(“Ratification occurs when the principal, upon learning of an unauthorized act of its agent,
acquiesces in, or affirms that act through his conduct.”).  Perhaps an agency will later refuse
to recognize the effect of the ratification or even that a ratification occurred, requiring the
Board or another tribunal to resolve a dispute about ratification between the parties, but that
does not mean that the Board itself is ratifying the unauthorized commitment, effective on
the date of the tribunal’s judgment.  The effectiveness of the ratification is dependent upon
the actions of the authorized individuals, and the ratification occurs when those officers act
in a way that effectively ratifies the previously unauthorized commitment.  
Here, Crowley is arguing that FEMA’s authorized contracting officers implicitly
ratified modification P00004 as early as October or November 2017, well before FEMA’s
express ratification.  If FEMA implicitly ratified modification P00004 through the actions
of its authorized contracting officers at that time, FEMA has no right later to use the express
ratification provision in FAR 1.602-3 to attempt somehow to eradicate the prior implicit
ratification.4
C. Implicit Individual Ratification of Modification P00004
Having disposed of FEMA’s timing argument, it is not difficult for us to find that
authorized officials, through individual ratification, implicitly ratified modification P00004. 
In fact, FEMA appears to concede this result, at least in part, in its summary judgment
4 In its briefing, FEMA also mentions, but then appears to disclaim reliance upon,
an argument that the express ratification procedures in FAR 1.602-3 displace and preclude
any form of implicit ratification.  To the extent that it has raised such an argument, we reject
it.  In the past, the Federal Circuit, in directing a lower tribunal to consider institutional
ratification on remand, did not indicate that the implicit ratification doctrine was displaced
by the FAR’s express ratification procedures.  Janowsky, 133 F.2d at 891-93; see Silverman
v. United States, 679 F.2d 865, 870-71 (Ct. Cl. 1982) (finding the Government bound by
implicit ratification without considering a predecessor express ratification regulation, when
the agency accepted benefits flowing from a promise made by an official without contracting
authority).  Further, we see nothing in FAR 1.602-3 that makes express ratification the
exclusive available method of ratification and bars any form of implicit ratification.  See FAR
1.602-3(b) (indicating that agencies “should,” rather than must, use its ratification process);
see also Digicon Corp. v. United States, 56 Fed. Cl. 425, 426 (2003) (rejecting FAR 1.602-3
exclusivity argument); Parking Co. of America, 87-2 BCA at 100,297-98 (rejecting same
argument relating to predecessor regulation).

CBCA 6188, 6312 24
briefing: “FEMA agrees that the facts exist to find that the performance of services was
implicitly ratified if the Board determines that implicit ratification is applicable in this
situation,” although it claims that FEMA only ratified “the performance of the work,” not
“the particular CLIN prices” written into the modification.  Respondent’s Motion for
Summary Judgment at 18 & n.11.  
Here, FEMA has stipulated that, no later than mid-November 2017, both Ms. Ward,
Ms. Allen’s direct supervisor, and Mr. Demps,  knew that modification P00004 was executed
by a contracting officer without a sufficient contracting warrant.  Despite that knowledge,
they did not take any immediate action to notify Crowley that there was a problem with the
contract or its terms.  Oral Argument Transcript at 50-51.  To the contrary, at about the time
that he learned of the lack of authority, Mr. Demps told Ms. Allen and others to tell Crowley
to continue to perform, as its services were essential and could not cease.  For the next three
months, any time that an effort was made to stop services from Crowley, that effort was
overruled by either Mr. Demps or Mr. Demps’s subordinate, Mr. Ansani, both of whom had
unlimited warrants of contracting authority.  It was not until February 2018 that Crowley was
ever informed of a problem with its contract.  Prior to that time, in FEMA’s mind, “the issue
was just this was mission critical work,” and “[s]topping the work would have caused
massive issues” relating to Puerto Rico’s and the USVI’s recovery.  Oral Argument
Transcript at 51.  By insisting for months that Crowley continue work that could have no
contractual basis other than modification P00004, without providing Crowley any notice of
any defects in the validity of its contract, FEMA, through a combination of the consistent
actions and silence of Ms. Ward, Mr. Demps, and Mr. Ansani, ratified the modification.
FEMA argues that, although it can and should be bound to pay for Crowley’s work,
it should not be bound to the price structure in modification P00004 because those who
implicitly ratified it did not know what the pricing structure was.  To the extent that Ms.
Ward, Mr. Demps, or Mr. Ansani did not know precisely what modification P00004 defined
as the payment terms for CLINs 1072 through 1083, that cannot preclude ratification of the
agreement, in total, in the circumstances here.  Mr. Ingol, while acting in Mr. Demps’
position while he had to be out of the office, received a copy of the executed modification,
which he presumably should have forwarded to Mr. Demps upon his return.  The
modification was also in the contract file.  To the extent that Mr. Demps, beginning in
mid-November 2017, and Mr. Ansani, at a later date, insisted on continued performance by
Crowley without looking at those pricing terms, that was their choice.  They clearly had the
ability to obtain the modification, and, in the circumstances here, they are charged with
constructive notice of its terms.  What they could not do was insist that Crowley continue
performing for several months (and to resume performing after Ms. Allen had issued a stop
work order based upon a direction from Ms. Ward) without telling Crowley at the earliest

CBCA 6188, 6312 25
opportunity about the authority issue and then raise the issue for the first time three months
later after Crowley had performed a high volume of emergency services.
At oral argument, FEMA suggested that constructive notice would be inappropriate
here because, “given the situation here, there was no time for people to go digging for things
not put on their plate.  There was enough on their plates to deal with.”  Oral Argument
Transcript at 49.  We are not discounting the difficult circumstances in which FEMA’s
contracting officers found themselves in trying to address the damage that these hurricanes 
caused and do not suggest that FEMA’s employees intentionally avoided obtaining “notice”
of the modification’s pricing terms.  Nothing in the record indicates that anyone involved in
the contracting effort to address these disasters was acting in anything but good faith. 
Nevertheless, after discovering the mistake in modification P00004’s execution, FEMA
failed to tell Crowley about it while actively insisting upon continued performance.  In such
circumstances, FEMA cannot disclaim that it is bound by the modification.
FEMA also argues that, when a contract action is implicitly ratified, the appropriate
monetary result is a quantum valebant or quantum meruit award, something that FEMA
believes it has already provided Crowley through its express ratification process.  If there had
been no ratification of an unauthorized commitment through which the agency had received
substantial benefit, the Amdahl line of cases, which we previously discussed, might be
invoked to provide the type of remedy that FEMA proposes.  The remedy following
ratification is different, at least as it applies to individual ratification.5  Because authorized
individuals within FEMA impliedly ratified modification P00004, Crowley is now entitled
to “the same rights to compensation, reimbursement, and indemnity as [it] would have had,
if this act had been previously authorized.”  Leviten v. Bickley, Mandeville & Wimple, Inc.,
35 F.2d 825, 827 (2d Cir. 1929); see Lewis v. Forest Pharmaceuticals, Inc., 217 F. Supp. 2d
638, 660 (D. Md. 2002) (“A ratified act has the same effect as if it had been authorized ab
initio; ratification confers retroactive authority on the agent-employee.”); Restatement
(Second) of Agency § 100 cmt. a (“The affirmance of the act of an unauthorized person by
the purported principal, all conditions requisite for ratification being fulfilled, normally has
the same effect as if such person had been originally authorized.”).  “[U]nauthorized
contracts become binding,” as written, through ratification.  Parking Co. of America, 87-2
BCA at 100,296.
5 Having found individual ratification in the circumstances here, we need not further
discuss Crowley’s institutional ratification argument or address the appropriate monetary
remedy for an agreement that has been institutionally ratified.

CBCA 6188, 6312 26
Having been ratified, the modification is enforceable according to its terms. 
Accordingly, FEMA had no right, months later, to use the FAR 1.602-3 express ratification
provision to change the pricing terms of that modification.  Crowley is entitled to payment
under CLINs 1072 through 1083 according to the payment mechanism set forth in those
CLINs.
Decision
For the foregoing reasons, Crowley’s motion for partial summary judgment is
GRANTED.  FEMA’s motion for summary judgment is DENIED.  The Board will schedule
further proceedings in these consolidated appeals by separate order.
   Harold D. Lester, Jr.                 
HAROLD D. LESTER, JR.
Board Judge
We concur:
   Jeri Kaylene Somers                      Erica J. Beardsley                      
JERI KAYLENE SOMERS ERICA J. BEARDSLEY
Board Judge Board Judge