RECENT ASBCA DECISIONS NOTED

Two recent ASBCA decisions are worthy of note.

The first dealt with contract interpretation. The contractor was to clear and grub the land within six inches of the surface. The contractor interpreted the word "within" to require measurement from the surface to six inches beneath the surface. The ASBCA interpreted the contract's plain language within the context of the agreement and determined that the word "within" meant not beyond six inches but did not require measurement of the whole 6 inches.

The second is a reminder that the case theory must be presented to the contracting officer in the claim. Suppose the contractor changes the theory of recovery changes on appeal. In that case, the board lacks jurisdiction since the claim had not been submitted to the contracting officer for a decision. (Do not forget you must also ask the contracting officer for a decision.)The contractor's theory was a vague price escalation claim that the contractor refined into a discrete constructive change claim on appeal. The ASBCA had to dismiss the appeal as it did not have jurisdiction over a claim that had not been submitted to the contracting officer.