In Trade West Construction, Inc., ASBCA No. 61068 (October 13, 2020), the government argued that the contractor failed to provide timely notice under the changes clause. It requires the contractor to provide notice to the government within 20 days of incurring additional costs and to submit a request for equitable adjustment within 30 days. Even though the contractor did not this, the Board allowed the contractor to pursue his change order claim anyway.
In government contracts, notice provisions are not strictly adhered to. Instead, the government must show how it was harmed by the lack of notice. Here, the government argued it was stripped of the opportunity to track the contactor’s increased costs caused by the change. The government also argued that, with the passage of time, project documentation gets lost and memories fade. The Armed Services Board of Contract Appeals held that this was not enough to show Government harm due to the contractor’s failure to provide timely notice under the changes clause. The contractor dodged the bullet and was allowed to pursue its claim based on the changes clause.
If you are confronted with a change on the project, always notify the Government in real time. An RFI is a good tool to provide such notification and to request direction on how to proceed. Better yet, insert this RFI activity into your CPM Schedule to track its potential impact on the critical path.
