Constructive Change Orders

It takes experience and preparation to win claims against the Federal government and that’s where Malyszek & Malyszek outrivals other law firms. Malyszek & Malyszek will help you fully recognize constructive change orders.

Nowhere in the Changes clause is constructive change mentioned. However constructive changes are recognized and used as though they were directed changes.

When the government issues a contract that trains a contractor exactly how a job is to be done, there is an inferred warranty that if the contractor does exactly what the contract calls for, a positive result will follow. In many cases, contractors do what they are directed to do and the result is not suitable to the government.

Under these conditions, any money spent trying to follow the faulty drawings, specifications of the contract are recoverable under the theory of constructive change. The constructive change concept means that the government initially directed the contractor on what to do, and now it must pay for that misdirection as though it was the result of a formal directed change. A constructive change occurs not as a result of government direction, but as a result of the circumstances the contractor encounters in performing the task.

Constructive changes are settled through an equitable adjustment to the contract price. If the parties can’t agree to the price for the constructive change, a dispute arises and the contracting officer will issue a formal decision from which the contractor can take an appeal. All constructive changes should be presented to the contracting officer prior to final payment.

There are many cases that state that final payment blocks any claims for constructive changes. These cases often cite authority that succeeded before the Contract Disputes Act. Since the Contract Disputes Act of 1978 has expanded the contracting officer's authority, there is no need to contemplate a constructive change as a matter falling under the Changes Clause. It was the Changes Clause that created the final payment bar. Now an individual can argue that a constructive change is really a breach of contract claim and can be brought after final payment.

Types of Constructive Change Claims include:

• Contract Interpretation
• Defective specifications
• Interference and failure to cooperate
• Schedule Acceleration
• Failure to disclose critical information

With over 40 years of experience and knowledge of government contract law, Malyszek & Malyszek can help specify the details of your circumstance. Call Malyszek & Malyszek today to speak to one of our attorneys regarding your case.