The Suspension clause
says in pertinent part: “However, no
adjustment shall be made under this clause . . . for which an equitable
adjustment is provided for or excluded under any other term or condition of
this contract.” FAR 52.243-4, Changes,
says the contracting officer may make changes in the work including changes in
the method or manner of performance of the work.
In addition, any
other order shall be treated as a change provided proper notice is given by the
contractor to the contracting officer.
The Changes clause
provides for an equitable adjustment in the cost of or the time required for
performance of any part of the work under the contract, whether changed or
not. The contracting officer is obliged
to make the equitable adjustment and modify the contract in writing.
Moreover, there is a
time-honored constructive change based on the duty of the government of good
faith and fair dealing. Under this
constructive change theory, the government may breach its duty to cooperate and
to not interfere in the contractor’s performance. Interference in performance thus is
compensable under the Changes clause.
In conclusion, the
Changes clause takes precedence over the Suspension clause based on the clear
language in the Suspension clause which precludes action under the Suspension
clause when the Changes clause is also present in the contract.
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