Contract changes, particularly in the construction context, can be flash points for the Government and a contractor. In some cases, the Government will assert that the contract requires the contractor to perform certain work; the contractor, pointing to the same (or another) contractual provision, will argue that the contract does not require it. These diverging positions can often lead to contentious litigation.
If you’ve ever found yourself in this position (or perhaps find yourself there currently), you’ll probably find a recent decision from the ASBCA, GSC Constr., Inc., ASBCA No. 59046 (July 11, 2019), illuminating. There, the board addressed various changes that the Government allegedly made to the contract, but for which it did not compensate the contractor. In some cases, it agreed with the contractor that compensation was owed; in one instance, it did not.
The task order, issued by the Army, required the contractor to “construct a combined Central Issue Facility . . . for permanent party troops and soldiers in Advanced Individual Training” at Ft. Sill, Oklahoma. The task order amount was $11,951,460 and the task order incorporated the contractor’s proposal and twelve amendments.
The contractor alleged that during construction the Government required it to perform additional work beyond the contractual requirements in four different areas: a potable (domestic) water line, a fire protection loop, a sanitary sewer main, and a truck turnaround. Let’s see how ASBCA analyzed each issue, focusing on key contract language for each.
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The current government shutdown is now the longest in U.S. history, and many federal contractors are incurring costs as a result of shutdown-related work stoppages and delays. Luckily, many federal contracts contain clauses that provide a potential avenue for recovery of such costs. Further, there are practical steps that contractors can take to increase their chances of recovering shutdown-related costs from the government.