Payne Hackenbracht & Sullivan
Variations in Estimated Quantities
As a general rule, the Variation in Estimated Quantity clause provides for an equitable adjustment in the contract price when the quantity of a pay item is an estimated quantity, and the actual quantity varies more than 15 percent above or below the estimated quantity. The recognized purpose of this clause is to apportion the risk of an overrun or underrun in estimated quantities resulting from factors not reasonably apparent to the parties at the time they entered into the contract.
Although the percentage limitations of the clause are strictly applied in determining entitlement to an equitable adjustment, the Variations in Estimated Quantities clause will not be enforced where the quantity variation is cognizable under either the Changes or Differing Site Conditions clause. United Contractors v. United States, 177 Ct.Cl. 151, 368 F.2d 585 (1966); Dunbar & Sullivan Dredginq Co., Eng BCA 3165, 73-2 BCA 10,285 (1973); Morrison-Knudsen Co. v. United States, 184 Ct.Cl. 661, 397 F.2d 826 (1968).
Similarly, it has been held that the clause is not applicable when the cause of the variation is an erroneous estimate resulting from the active misrepresentation, deliberate wrong, gross or inexcusable error, or the negligence of the government. Maya Transit Company, ASBCA No. 20186, 75-2 BCA 11,552 (1975): Womack v. United States, 182 Ct.Cl. 599, 389 F.2d 793 (1968); Chemical Technology, Inc. v. United States, 227 Ct.Cl. 120, 645 F.2d 934 (1981); John Murphy Construction Co., AGBCA 418, 79-1 BCA 13,836 (1979). Indeed, the bidder does not assume responsibility for the government's miscalculation, error or negligence:
[W]here a negligently-prepared estimate by the government results in additional costs to a contractor, the contractor should be entitled to reimbursement for such costs.
Integrity Management International, Inc., ASBCA No. 18289, 75-2 BCA 11,602 (1975).
(Also See Calculation of Adjustment under VEQ clause)
(Also See Variation in Estimated Quantities, Application)
(Also See Variation in Estimated Quantities, Dredging)