Payne Hackenbracht & Sullivan
Government Estimate
Exculpatory clauses notwithstanding, contractors are entitled to rely on Government estimates and, although the Government "is not required to be clairvoyant . . . it is obliged to base that estimate on all relevant information that is reasonably available to it." Womack v. United States, 389 F.2d 793, 801 (Ct. Cl. 1968). The burden of proving the estimate is unreasonable is on appellant. Apex International Management Services, Inc., ASBCA Nos. 37813, 38178, 38224, 38278, 38297, 38354, 38514, 94-1 BCA 26,299. Although appellant here has submitted no evidence, we find nonetheless that the Government did not meet its obligation to base the estimate on all relevant information reasonably available to it. Womack, supra. The Government's own evidence establishes that it received the "stop loss" order months before award of the contract. Therefore, it possessed information invalidating the basis for its estimate of when units would be available for work under the contract (finding 4). This is sufficient to carry appellant's burden of persuading the Board that current, available, relevant information essential to the disputed estimate was not used. While the Government may not have been able to predict the full effect of the "Stop Loss" order, it knew or should have known prior to award that the estimated quantities in the solicitation were seriously flawed. Failure to at least disclose the flawed nature of the estimates was unreasonable.
ASBCA No. 45248, Fa. Kammerdiener GmbH & Co., KG