IMPROPER CHANGES

What does a contractor do when the contracting officer directs him to do something and the contractor believes he is not required to do it?  Can he refuse to do it?  One old board case decision says "the contractor has no right to make a useless thing and charge its customer for it."  But not following direction from the contracting officer most likely will be abandonment and an anticipatory breach of the contract resulting in a termination for default.  See also our post on the cardinal change doctrine.

If the contracting officer directs the contractor to do something the contractor believes is not required by the contract, the contractor should immediately engage the contracting officer in an oral and written dialogue about the direction.  Clarify the direction and find out what provisions of the contract the contracting officer thinks support his or her position.  Carefully search the contract to determine all of its requirements.  Was the proposal incorporated in the contract?  If so, with what priority under the Order of Precedence clause?  Try to arrive at a reasonable interpretation of the contract language.

Then apply the rules of contract interpretation.  What is the meaning of the plain language?  Contract terms are given their plain and ordinary meaning.  Contract terms are to be interpreted and read as a whole giving reasonable meaning to all parts.  Proper interpretation does not render a contract provision useless, nonexistent or superfluous.  If the terms support more than one interpretation, the language may be ambiguous.  However, in order for an ambiguity to exist, respective interpretations must fall within what is called the zone of reasonableness.  If an ambiguity exists, and it was not obvious or glaring and therefore waived by the contractor at time of bidding, it will be construed against the government as its drafter.  See our article on contracts of adhesion.

Try to convince the contracting officer of the correct interpretation.  But never say you will not follow his or her direction.  You are obliged under the Changes and Disputes clauses to continue to work.  You may of course, submit your request for equitable adjustment or claim and you should promptly notify the contracting officer of your intention to do so.

bill@spriggsconsultingservices.com                           bill@spriggslawgroup.com