08/16/2021

Editor's Notes

Change order clauses frequently require a contractor to itemize costs in situations where the changed work has not been priced in advance of performance. The need for this information is self-evident but what happens when pricing can be deduced from the base contract? Is cost itemization still required? A federal appeals court recently addressed this issue.

 

The contract in question included substantial excavation, which had been unit priced. The private project owner expanded the scope of work, which increased the quantity of excavation. The court ruled the contractor’s failure to submit itemized costs did not bar recovery for the additional excavation. The unit prices in the base agreement served as an agreement on prices for the extra work.

 

The second case in this issue involves the admissibility of a professional engineer’s expert opinion. The engineer’s opinion reflected detailed knowledge of the project and extensive experience with that type of work, but he failed to consider the contractual definition of the work. The opinion lacked a sufficient factual basis and was inadmissible.

 

The third case arose out of a federal construction contract. When a contractor re-priced its delay claim using a different methodology, the adjustment did not constitute a new claim that had to be re-certified and presented anew to the government contracting officer for another decision.

 

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