As a Government Contractor, when have you agreed to perform a certain way, but later realized that another way is better for everybody? When the Government agrees, expressly or impliedly, to the alternative performance, it waives a credit for the unperformed work.
In a recent example, under a design-build contract, a Government Contractor agreed to construct permanent bridges over irrigation canals in El Paso County, TX. (As an aside, the coldest night of my life was spent in Guadalupe National Park, just east of this project at negative 15 degrees in December.) The Contractor’s original plan included temporary bridges. After contract award, the Contractor successfully and timely performed its work without the temporary bridges. The Army Corps of Engineers knew of the Contractor’s plan and the changes to that plan, but without objection. Nevertheless, the Government sought a credit for unperformed, temporary bridges.
The Armed Services Board of Contract Appeals held that where the Government agrees to a planned method, but then does not object to a change in that method, the Government waives a credit, if any, for the savings from the change in method.
Read more about this example at ENR.com: Board Backs Contractor In Corps Cost Discovery Dispute
Appeal of American West Construction, LLC, ASBCA No. 61094 (December 19, 2017).
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Jonathan J. Straw
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