36) The Board determined that the ROICC PM's delegation of authority, which stated that he was "responsible for construction management and contract administration," had provided him "express actual authority to make any changes that were necessary to resolve problems at the site.
On appeal this year, the Federal Circuit reversed the ASBCA decision, holding that the ROICC PM had neither express nor implied actual authority to make contract changes.
Here, the ROICC could not have had the implicit authority to authorize contract modifications because the contract language and the government regulation it incorporates reference explicitly state that only the contracting officer had the authority to modify the contract.
There being no express or implied authority for the ROICC PM to make contract changes, the court remanded the case to the ASBCA to determine whether the contracting officer's initial Final Decision finding entitlement to some of the contractor's claims constituted a ratification of the changes directed by the ROICC PM, an issue that the board previously had no need to address since it had found express authority to make the changes.
Other information provided to the contractor at the preconstruction conference also seemingly suggested that the ROICC PM was the first level decision-making authority for contract changes.
The board noted that the ROICC PM was also "the key government person with respect to performance," a fact which in a past decision had caused the board to find that a Project Officer "was impliedly authorized to make changes where expeditious action was required.