Sunday, June 24, 2012

HOW TO WRITE A REQUEST FOR EQUITABLE ADJUSTMENT (REA)

You will not find instruction in any regulation on how to write a request for equitable adjustment (REA).  There is no form to fill out as there is, for example, with the termination for convenience forms in the Federal Acquisition Regulation (FAR).  What's more, you will not find a definition of equitable adjustment in FAR Part 2 although you will find "claim" defined there (the REA becomes a claim when certified as required by statute and regulation).  So where do you look for guidance?

One place is Bruce Constr. Corp. v. United States, 324 F.2d 516 (Ct. Cl. 1963) where the predecessor to the present day Court of Appeals for the Federal Circuit (CAFC) said the basic purpose of the equitable adjustment is "to keep a contractor whole when the Government modifies a contract."  But just what does the REA look like and how should one go about writing it?  And what should a contracting officer expect to see?  (The contracting officer should reject a REA not meeting the standard we suggest.)

There is a time honored formula for putting the REA together and a recognized format for its presentation.  First, there is a change narrative containing the following information:
  1. A summary of the government act or omission giving rise to the REA.
  2. A statement of the contract requirements and a description of the anticipated performance under the contract.
  3. A statement of the acts or omissions of the government that caused additional work, increased cost of performing the work or delay in completing the work as originally contemplated in the contract.
  4.  A detailed description of the cause and effect relationship between the acts or omissions of the government and the additional costs or the delay involved.
  5. A detailed computation of the extra, unanticipated costs and delay.
  6. A legal brief discussing the facts and the applicable legal theories supporting the recovery sought.
Then, there is an indexed and tabbed appendix containing contract excerpts, pertinent contract specifications, correspondence, charts, tables, photographs, technical write-ups and expert opinions, if applicable.


There is no requirement to follow this outline.  However, we have seen too many so called REA's falter or fail because they are deficient in one or more categories of this outline.  The most common errors are 1) great stories in search of a theory of recovery or 2) great recitations of the law in search of facts supporting the request. No matter how you construct your presentation, it should at least include the elements in this outline.


Contracting officers should insist that REA's follow this format.  Frankly, if a contractor fails to do so, the contracting officer should send the request back to the contractor and insist that the contractor followed the time-honored outline.


We'll discuss the theories of recovery in the coming weeks.  We also have a six page thorough discussion of what the REA should contain if anyone is interested.


Postscript:  The same outline should be used when submitting a claim under a commercial item contract.


bill@spriggslawgroup.com      http://spriggsconsultingservices.com/
                                                  http://www.spriggslawgroup.com/

3 comments:

  1. Number 4 & 5 are where people start to get off track.

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  2. How can I access your "six page thorough discussion of what the REA should contain", please? Thanks. Hasim Mutlu h.mutlu@epik.com.tr

    ReplyDelete
  3. How can I access your "six page thorough discussion of what the REA should contain", please? my email address is rblack@ewingcc.com

    Thanks,

    ReplyDelete