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Getting a Request for Equitable Adjustment (REA) mixed up with the requirements for a Contract Disputes Act of 1978 claim (CDA), 41 U.S.C. 7101 – 7109, is one of the most expensive legal mistakes you can make when doing business with the federal government.
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 legal recognizable reason.
- Get immediate help from experienced federal procurement attorneys
- Get a detailed assessment of potential damages in a request for equitable adjustment versus claim submissions
- Develop a reliable record that can protect your rights in the future (commonly missed by some lawyers)
- Prompt turnaround with contractual adjustment firm-fixed-price contracts.
- Competitive rates when trying to appeal a request for equitable adjustment denial letter.
There are appeal cases before the various boards of contract appeals or Court of Federal Claims where contractors are fiercely met with motions to dismiss the case for lack of subject matter jurisdiction. Small businesses often lose out simply because of improper interpretation of contract terms, not properly articulating differing site conditions, or simply inserting the proper certification language when trying to get a request for equitable adjustment converted to a claim.
- Whether you are trying to figure out the difference between a claim and FAR 52.243 request for equitable adjustment in a firmed fixed price contract or cost-plus contract, or simply need help preparing your REA documents, we can help.
Government Contractor Request for Equitable Adjustment FAR 52.243 Legal Services
At Watson & Associates, our request for equitable adjustment consulting team and CDA attorneys provide a wide range of assistance for government changes under FAR 52.243 including:
- Change order and extra work conflict resolution;
- Assessment of contract terms and application of the FAR Changes Clause;
- Firm Fixed Price Contract and Cost Plus Contract REA
- Preparation of REA requests;
- Construction contract change order guidance;
- Contractual adjustment firm fixed-price contract matters;
- Disputes with Contract Disputes Act requirements; and
- Contract compliance and regulatory assistance.
- 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 request for equitable adjustment consultants that have decades of government contracting experience.
To speak with an equitable adjustment consultant or attorney, call 1-866-601-5518. FREE INITIAL CONSULTATION.
What is a Request for Equitable Adjustment?
As a government contractor, you will more than likely submit a Request for Equitable Adjustment (REA) at some point during your federal contracting career. You must be familiar with the disputes procedure when there is an actual dispute between you, the contractor, and the US government.
Depending on the facts of your particular case, you will either have to submit a request for equitable adjustment or a claim. These two approaches are somewhat different and can yield completely different results.
Suggested Key Points to Include in an Equitable Adjustment FAR Request
Federal procurement regulations do no 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 drawing, 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 by 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
Is an Equitable Adjustment a Claim Under Contract Disputes Act (CDA)?
Many government contractors mistakenly believe that the equitable adjustment serves the same purpose and has the same requirements of a Contract Disputes Act Claim (CDA). However, 41 U.S.C. 7101 – 7109, does not provide the legal definition of a government contract claim. The definition of a “claim” under the FAR is as follows:
“Claim” means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor seeking the payment of money exceeding $100,000 is not a claim under the Contract Disputes Act of 1978 until certified as required by the Act. A voucher, invoice, or other routine requests for payment that is not in dispute when submitted is not a claim. The submission may be converted to a claim, by written notice to the contracting officer as provided in 33.206(a), if it is disputed either as to liability or amount or is not acted upon in a reasonable time.
FAR REA vs Claim
The key to success when submitting a FAR REA to the government is to know the difference between an REA and a claim under the Contract Disputes Act. See 41 U.S.C. § 7103. The main difference is FAR certification. This is important in the event of an appeal to the ASBCA, CBCA or Court of Federal Claims for the court’s jurisdiction under the Contract Disputes Act.
- REA requests must be timely submitted
- Remember that the contract can be adjusted upwards or downwards
Courts grant the government some time to get questions answered. However, months on top of months for complete avoidance by the government may not be tolerated. With regards to a Contract Disputes Act claim, companies should remember that the more details and evidence to support your claim, the better the chances of getting paid.
When comparing an REA vs claims to the government, the government is only required to pay for services that are complete and in accordance with the contract terms. A request for payment is not generally regarded as a claim.
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.
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. See Federal Circuit Court of Appeals in the case of Hejran Hejrat Co. Ltd., No. 2018-2206 (July 17, 2019).
Avoid Dangerous and Costly FAR REA Mistakes
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 to think that interest is allowable under REA rules.
FAR REA Changes Clause? Helpful Topics
|Read more relevant information about FAR Equitable Adjustments.|
Call Watson’s FAR 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 consulting team and Federal REA Attorneys or call 1-866-601-5518 for immediate help.