Payne Hackenbracht & Sullivan
Changes - Claims
Where, as a result of government's improper and erroneous interpretation of contract provisions, a contractor is required to perform more or different work, or to higher standards not called for under the terms of the contract, the contractor is entitled to an equitable adjustment pursuant to the changes clause. Emerson-Sack-Warner Corp., ASBCA No. 6004, 61-2 BCA 3248 (1961).
Requests for additional compensation under the Changes clause should be directed, in writing, to the Contracting Officer or his authorized representative. It is important to provide timely notice that you consider the work to be changed and that you expect additional time or money. If the government requires you to present cost data in support of a change order request, be certain that the cost data you provide is accurate and supportable. If you cannot identify all of your costs at the time of the submission, include a reservation of rights with your submission which will allow you to provide further cost data at a later time.
If it is your contention that you performed changed work, and the government denies that it directed the work, an interesting decision of the Court of Claims stated as follows:
It would be a rather unusual situation for a contractor voluntarily to do substantially more work than is required by the terms of the contract, thus only to increase the costs. Ghoulson, Byars & Holmes Construction Co. v. United States, 173 Ct.Cl. 374, 351 F. 2d 987.
It is well settled that where the contract prescribes the result but not the means and there is more than one method available to accomplish that result, a directive to perform in a specific manner is a change. Beacon Construction Co., PODBCA 247, 68-2 BCA 7197, Graham Co., ASBCA 4585, 58-2 BCA 1998. An explicit directive is not mandatory for recovery. The Boards have held that if the Contracting Officer improperly restricts a contractor's choice of methods so that costs increase, the Contracting Officer's actions constitute a constructive change for which an equitable adjustment is due. Long Services Corp., PSBCA 1606, 87-3 BCA 20,109; citing Bill Wright Painting & Decorating, Inc., ASBCA No. 33343, 87-1 BCA 19,666; Otto Randolph, Inc., ASBCA No. 11539, 66-2 BCA 5928.