Often, the notice requirements in the Changes clause and the Differing Site Conditions clause are difficult if not impossible to meet. Fortunately, a contractor may still be able to recover on requests for equitable adjustment (REA's) and claims depending on the close examination of the facts of each case.
As a general rule, the notice requirements should be observed and enforced. However, as the law has developed, the exceptions to the rule have become the rule.
If the government in fact knew or should have known the facts involved in the REA or claim, the contracting officer considered the claim without complaining about notice or the failure of the contractor to provide the notice did not materially prejudice the government, the notice requirement will not be enforced. Government records may show knowledge or the presence of government representatives at the site and their assistance in the attempts to solve the problem may also show knowledge of the issues.
The purpose of the notice clauses is to be sure that government knows of problems so it can act to solve them to its satisfaction. However, if there is no prejudice to the government in that it is not materially harmed by the failure of prompt notice, the notice requirement will not be enforced.
The same rules apply to the Differing Site Conditions clause notice requirements. The purpose of the notice requirement is to give the government the chance to change the design or construction and to mitigate its costs. Unless the lack of notice results in actual prejudice, the government's defense of lack of notice will be rejected.
Perhaps most importantly, notice requirements to not apply to breach and constructive changes claims.
bill@spriggsconsultingservices.com
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