HOW TO WRITE A REQUEST FOR EQUITABLE ADJUSTMENT

1.         The change proposal narrative containing:

(a)       Summary statement of the change.

(b)       Statement of the contract requirement.

(c)       Statement of the Government direction or actions or inactions that caused the contractor to exceed the contract requirements.

(d)       Detailed statements of the added work or work performed exceeding contract requirements.

(e)       Computation of the costs of work exceeding contract requirements.

(f)        (A Legal brief may be included in each claim package or group of packages as the circumstances indicate.)

2.         An indexed and tabbed appendix containing, as applicable.

(a)       Excerpts from pertinent contract documents.

(b)       Pertinent contract drawings.

(c)       Pertinent correspondence and performance documents.

(d)       Charts and tables containing or analyzing data.

(e)       Photographs.

(f)        Technical write-ups.

(g)       Excerpts from technical treatises.

(h)       Expert opinions.

(i)        Cost computation.

(j)        Any other pertinent documents or data.

(k)       (Additional extremely detailed supporting material of a bulky nature should be readily retrievable but not necessarily appended to the change proposal.)

Each of the foregoing items of documentation for the change proposal is described briefly below.

1(a).    Summary.  As the name implies, the summary statement is a brief statement of the claim.  It should be complete including the amount claimed. However, it should never consist of more than several short paragraphs.  Its purpose is to inform the reader of what he will learn if he reads the rest of the change package.  It is important that the summary be accurate.  The summary should normally be prepared after all other writings, as set out below, is completed.

1(b).    Contract Requirements.  Since costs are being claimed for exceeding contract requirements, it is essential that the original contract requirements be clearly established at the beginning of the change proposal.  This is accomplished by stating the contractor's interpretation of the contract requirement and then proving it to be reasonable by reference to each and all of the specification paragraphs, drawings or other contract documents upon which reliance is placed for that particular interpretation.  This is the baseline that must be established. To avoid excess length in the narrative, it frequently is desirable to include reproductions of contract articles in the appendix, to which reference may be made. See Paragraphs 2(a), and (b) below.

1(c)     The Change.  This is the paragraph that will present some or the greatest difficulties in preparing, i.e., tying performance exceeding contract requirements to the Government's action or inaction (including issuance of defective or impossible drawings and specifications).  Where there is a written document directing the contractor to do or not to do certain work (even though not a formal change order), the problem is made easy.  Where there was a document prepared rejecting work considered to fulfill contract requirements, the problem is made relatively easy.  Likewise, where there was a defect or incompatibility in the contract's drawings or specifications, identification of the “constructive change” is relatively easy.  However, it is not at all unusual for the major portion of changes to arise from circumstances where the Government gently nudged a contractor into a particular course of action.  Some or all of the “nudges” may have been oral, instead of written.  The direction in such areas is not direct but is more subtle.  For claim purposes it is necessary only that the government has participated in the decision or the event that resulted in the contractor proceeding in a certain manner.

It is particularly in this area of investigation that the perception of the claim writers and investigators must be exercised.  For example, if difficulties are encountered with the item to be manufactured, it may be because the government changed the item's configuration (perhaps by work rejection) sometime earlier. Similarly, for example, the claim investigators may not readily see how a certain construction method or sequence was directed by the Government.  However, the reason for the construction technique may have been the lack of trained personnel to do it in another manner.  The lack of trained personnel in turn may have resulted from some direction that absorbed the available skills in this area.  In other words, changes must be traced to their ultimate origin and at times one must look behind the obvious and proximate causes for the real cause.

1(d).    The Added Work.  The Government cannot pay for work exceeding the contract requirements unless it knows precisely and in detail what that excess work is.  Accordingly, it is necessary to describe by size, weight, length, increased performance, etc., whatever it is that is being asserted as extra work.  Such description cannot be vague or general, it must be specific.  Where the change is based upon a defect or incompatibility in the drawings and specifications, a delay, a change of sequence, a redesign of work or over-inspection, etc., the resulting extra work must be described with particularity.  It is not sufficient to simply say that certain work was "delayed" or there was "impact."

The method by which the changes are quantified, i.e., the number of times an item was reworked, the number of drawing revisions, the number of man hours and materials lost through a change or defect in drawings, the increased quantities of materials used, etc., must be stated.  This statement ties in with the cost computation (1(e). below and it is not necessary to duplicate the quantities in both sections.  The purpose of the present section is to make it clear that the change is for a certain quantity of material, and/or labor, and/or delay, etc., and is not a change for something else or something which cannot be quantified.

1(e).    Cost Computation. The computation of costs for the additional work is principally the job of the accountants, change order estimators and cost analysts.  However, the claim writers and investigators will contribute a major input in identifying quantities as discussed in 1(d) above.  In addition, much of the pricing will be based upon engineering estimates which must be made by the original investigating group.

1(f).     Legal Brief.  A legal brief, if appropriate, will be prepared by the attorneys who also will review and revise, if necessary, the other sections of the change proposal narrative to coordinate legal theory with provable fact.

            Appendices

2(a).    Contract.  The use of contract excerpts is discussed in Paragraph 1(b) above.  Such excerpts should be complete for this particular change proposal so that the parties reviewing the claim need not go back to the contract itself.

2(b).    Drawings.  Same as 2(a) above.

2(c).    Correspondence.  These are documents generated during performance and usually are included in the appendix to support the statements in Paragraphs 1(c) and (d)., the work performed, and the Government's direction to perform such work.  Typically they may include correspondence, minutes of meetings, test reports, but may consist of any type of document.  If they support the claim and are not too bulky, include them in the appendix.

2(d).    Chart and Tables.  Frequently raw data is too voluminous to include in an appendix.  It should be charted, scheduled, tabulated, made into overlays, etc., in such a manner as to support the claim.  It is extremely important that any such chart specifically reference the source of the raw data and its retrievable location.  Use of this type of material should be maximized.

2(e).    Photographs.  "A picture is worth a thousand words" is a saying that has particular applicability to proving facts.  Typically it not only proves the fact of the change, but also is descriptive of what the change is.  On the other hand photographs are dangerous because they may show something inconsistent with a position asserted in some other change proposal.  They are valuable, but use with caution.

2(g).    Technical Write-ups.  Changes (and defective specifications) frequently are based upon highly technical considerations.  Frequently because of the length of the necessary technical discussion, it is undesirable to include them in the change proposal narrative and thus break the continuity and persuasiveness of the narrative.  Accordingly, it may be desirable to summarize the technical discussion in the narrative and to present it in complete detail in the appendix.

2(g).    Technical Treatises.  Where technical consideration are involved, it may be desirable to reproduce a few pages or a chapter of an accepted technical treatise that supports the positions advanced.

2(h).    Expert Opinions. An expert opinion may be attached under the same consideration discussed in 2(g) above.

2(i).     Cost Computation.  Normally the narrative (See 1(e). above) will contain only a summary of the cost computation.  Detail should be included in the appendix.  There will be another layer of detail and raw data, work papers, etc., which will be available but will not be included in the appendix and should be clearly referenced therein.

2(j).     Other Data.  The above listing of supporting documentation is not intended to be all inclusive and any other material which may be considered persuasive should be included in the appendix.  The nature of appropriate material is limited only by the nature of the material available and the imagination and ingenuity of the people preparing the change proposal.  Remember that after claim identification and investigation, the major job becomes salesmanship.  The first element of salesmanship is clear statement of the change.

2(k).    Bulky Data.  It is both impossible and undesirable to include all supporting data in the appendix because of bulk and also because much of it is of a lower tier evidentiary value.  However, it should be identified, catalogued, and available for presentation to the government should it request it or should the circumstances later indicate the desirability of it being submitted.  Much of the lower tier material would be presented at a contract appeal hearing before the Armed Services Board of Contract Appeals.