When contract effort exceeds the original scope of work the contractor is entitled to receive a price adjustment to the contract price. A constructive change occurs when a contractor must perform work beyond contract requirements without a formal “order” to do so under the “Changes” clause. Such a change can include an informal order or direction of the government or by the fault of the government (M.A. DeAtley Construction, US, 75 Fed. Cl. 575). To recover under this theory the contractor must advise the government it considers the contract to have changed.  A constructive change was ruled to have occurred where the government kept unused materials belonging to the contractor (G&R Svc Co. v Dept of Agr., CBCA No 121) or where a contract permits a manner or method of performance, changing it or forbidding such a manner or method constitutes a constructive change (Beyley Construction v Dept of Veterans, CBCA No. 5, 07-2). The Board held the government can be placed on notice of a claim by being made aware of the operative facts and that oral notice may be furnished (AAB Joint Venture v US, 75 Fed. Cl. 414). When a defective spec changed the work, a constructive change occurred (Wu & Assocs., LBCA NO. 204-, 07-2). The Board further held that the government has the burden to prove prejudice (i.e. harm) from a lack of notice and this burden cannot be met by mere allegation but must be supported by evidence from the record (SUFI Network Svcs, ASBCA No. 55306).

 

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