Govt. Failed To Timely Respond To $1 Million Differing Conditions Claim

Friday, November 02, 2018 6:38 am
November 2018 - Volume 40 Number 11

Equitable Adjustment --- Contract Disputes Act

Petition of: AWA Wilson JV, 2018 ASBCA Lexis 277 (September 17, 2018)

The government dragged its heels for more than two years on making a final decision regarding a request for equitable adjustment. The Armed Services Board of Contract Appeals determined that timing was two months too long.

AWA Wilson JV (AWA) was the general contractor on a U.S. Army Corps of Engineers (Corps) contract for construction work at the Kingsolver/Pierce School in Fort Knox, Kentucky. During its project performance in 2014, AWA’s earthwork subcontractor, Range and Civil Construction LLC (RACC), encountered differing site conditions---i.e., “unsuitable subsurface soils” in greater quantities than expected based on the contract documents. AWA submitted the first of several requests for equitable adjustment (REA) in March 2015. The Corps denied that request in May 2015, claiming it had no merit and recommending that AWA provide an analysis if the contractor wanted to pursue the action.

AWA resubmitted its REA with the requested analysis---including the direct and indirect costs associated with the unsuitable soils and their impact on the contractor’s and sub’s performance---in July 2016. It then made multiple subsequent requests and attempts to elicit a contracting officer’s final decision (COFD) over the next two years. Eventually, in April 2018, the c[..]