What’s the difference between a suspension of work and a constructive change? For federal contractors, there are two important differences:
- If you want profit, prove a constructive change.
- If any other contract clause affords an equitable adjustment (e.g., Changes Clause), the Suspension of Work clause won’t help you.
To recover from a suspension of work, a contractor must show:
- Contract performance was delayed;
- Government directly caused the delay;
- The delay was for an unreasonable period of time; and
- The contractor suffered damages therefrom (excluding profit); and
- No other clause provides an equitable adjustment to the Contractor
FAR § 52.242-14
To prove a constructive change, a contractor must show:
- Any written or oral order from the Contracting Officer;
- Not a directed change;
- That caused a change;
- Contractor gave timely notice that it considered the order as a change; and
- The contractor suffered damages therefrom.
FAR § 52.243-4(b)
In a recent Civilian Board of Contract Appeals decision, the Board agreed with the contractor in finding an unreasonable delay (179 days) and awarded damages for a suspension of the work. In the same decision, the Board also found a constructive change in the contractor’s favor. The Board did not discuss why the suspension of work clause prevailed when the contractor may have been able to show a constructive change (unless, perhaps, notice of a constructive change was inadequate).
BCPeabody Construction Services, Inc. v. Dept. of Veterans Affairs, CBCA No. 5410, March 26, 2018