Watson &.Associates LLC federal government contracts lawyers provided consulting and litigation support when contractors submit a request for equitable adjustment. (REA) to the contracting officer. Having worked for federal contracting agencies, we understand the common issues and disputes that arise.
We help small businesses and large contractors in ALL states and overseas. Our goal is to help clients avoid some of the most costly mistakes seen to date.
What is an Equitable Adjustment in Federal Contracting?
An equitable adjustment is a request for additional compensation or contract adjustment to the terms of a contract due to an increase in costs that are beyond the control of either party. The contractor believes that it is entitled to payment. This could include material changes to the scope, contract performance specifications, or delivery schedule–all of which can have a significant impact on the cost and timing of completion.
The Federal Acquisition Regulations (FAR) provide guidance regarding REAs, as well as federal government contracts procedures and remedies available when they are denied. It is important to engage an experienced FAR equitable adjustment lawyer when submitting such requests to the contracting officer in order to ensure your rights and interests are adequately protected.
The FAR outlines circumstances where it may be appropriate for one party to seek an REA from another party for contract performance. Such circumstances can include but are not limited to: a change in the contract terms or specifications, a delay or suspension of work, an increase in the costs of labor or materials, and/or a breach of contract. If an REA is requested by one party but denied by another party, then it may be necessary to seek legal recourse. An experienced government contracts. FAR equitable adjustment lawyer can provide guidance on how best to proceed based on each individual situation.
FAR 52.243 Government Contracts Equitable Adjustment Attorneys Services
At Watson & Associates, our request for equitable adjustment and government contracts consulting team and CDA attorneys provide a wide range of assistance for government changes under FAR 52.243 including:
- Request for equitable adjustment firm-fixed-price contracts
- Change order and extra work conflict resolution;
- Assessment of contract terms and application of the FAR Changes Clause;
- REA firm fixed contract price
- Contract and Cost Plus Contract REA
- Preparation of REA requests;
- Construction contract change order guidance;
- Contractual adjustment firm-fixed- contract price matters;
- Disputes with Contract Disputes Act requirements; and
- Contract compliance and regulatory assistance.
Appeal of request for equitable adjustment denial letter from the contracting officer
Benefits of using our REA consulting and legal services
- Get a proper assessment of the number of damages for extra work you seek.
- Assess the merits of your request for equitable adjustment versus claim legal requirements before wasting valuable resources.
- Learn from lawyers and REA consultants that have decades of government contracting experience.
Department Attorney and request for equitable adjustment consultant: Cheryl Adams
Suggested Key Points to Include in a FAR REA. Request: Federal procurement regulations do not craft mandatory guidelines for an REA. How you draft the document is based on experience in the procurement field and some additional pointers such as the following:
- Explain in detail and support with evidence of what the government failed to accomplish given the contract terms and conditions. If there were delays, then you want to be very specific and provide sufficient facts so that the contracting officer understands your position.
- Discuss the inefficiencies of contract specifications and drawings, and what was different about the agreed-upon expectations under the contract.
- What did the government do to increase costs that could not have been anticipated at the beginning and what were the costs incurred?
- Was there a direct connection between the cost incurred and the failure of the government
- What were the costs and what exactly did the government do or not do
- Develop a factual and legal reason why the government should pay for the contractual adjustment
Tip: An REA by itself is not a “claim” under the Contract Disputes Act. Although the equitable adjustment and your CDA claim may seek the same relief, you should be very careful not to make the costly mistake of thinking one equals the other. The REA only becomes a claim under the contract when it is submitted to the contracting or other authorized government representatives with a demand for payment. Afterwards, the parties much reach an impasse before the claim can be viewed as a Contract Disputes Act claim.
Tip: The FAR certification language for an REA is not the same as for a Contract Disputes Act claim.
Tip: Although you submit your request fashioned as an REA, you want to also ensure that it still maintains the elements of a Contract Disputes Act claim to the contracting officer. See Federal Circuit Court of Appeals in the case of Hejran Hejrat Co. Ltd., No. 2018-2206 (July 17, 2019).
What is the key to a successful REA?
The key to a successful adjustment starts with the approach. As government contractslawyers we often suggest to our clients that a request for equitable adjustment should be approached as a mutual negotiation for an unexpected situation that ultimately changes the terms of the contract. A successful REA should include a complete breakdown and unpacking of the situation, for which the contractor believes that it is entitled to payment, and an explanation of why the change is not included in the current contract or was not contemplated. Finally, a successful REA should include reasonable pricing.
Federal Acquisition Regulation (FAR REA) clauses provide for relief for additional resources not contemplated at the beginning and formation of the contract. Contractors must submit a timely request for situations such as differing site conditions in a construction contract or some other legally recognizable reason.
Tips for Submitting an REA
To submit a request for equitable adjustment under FAR rules, a contractor should follow these steps:
1. Document their claim. The contractor should present the REA to the contracting officer, including a detailed explanation of why they are entitled to additional compensation.
2. Consult an experienced REA lawyer to ensure compliance with applicable regulations.
3. Submit a Claimant’s Application for Equitable Adjustment under FAR Part 33-7 to protect the right to payment in case the entitlement is disputed by the government. This form serves as a summary of all relevant information regarding the contractor’s claim.
4. The contracting officer can either accept or reject the equitable adjustment request. If the decision involves negotiation between the two parties, an agreement must be reached in writing and signed by both parties.
5. Prior to submitting a request for equitable adjustment, contractors should consider if there was already a written contract that addressed the issue which is being discussed for an adjustment. If so, then it is important to understand how those terms apply and review whether any other conditions or limitations stated in the contract affect one’s eligibility.
What happens when you and the contracting officer do not agree? A common response from the government is that your request for a change is already covered by the contract. There is where having an experienced REA attorney can be of benefit. If there is a disagreement and the contracting officer does not want to approve your REA, you want to then submit a Contract Disputes Act claim. Oftentimes, contractors will tweak the REA to make sure it meets the CDA requirements.
US Court of Federal Claims Appeals Protests Lawyers & Procurement REA Appeals Attorneys: Unfortunately, the various boards of contract appeals (ASBCA and CBCA) are bombarded with litigation for cases that stemmed from submitting FAR request for equitable adjustment cases. More unfortunate is the fact that both small businesses and larger DOD contractors would appear to have viable arguments that would normally build a strong case against the government. The following problems should be avoided.
- Not making sure that your request also meets the FAR REA certification requirements for a claim under the Contract Disputes Act.
- Not fully articulating the basis for the upward adjustment and why it was not anticipated in the contract.
- Avoid taking directions from Contracting Officer Representatives. Generally, these people cannot bind the U.S. government.
- Making the mistake of thinking that interest is allowable under REA rules.
|Read more relevant information about FAR Equitable Adjustments.
Call Our Request for Equitable Adjustment Attorneys
Whether you are submitting a FAR REA versus a claim due to change orders under FAR Part 43 or Construction changes to the scope of work under FAR 52.243, contact our request for equitable adjustment attorneys or call 1-866-601-5518 for immediate help.