Two days of concentration on the paramount issues in Government construction.

• Changes
• Site conditions
• Delays
• Suspensions
• Acceleration
• Impact costs
• Recognizing, avoiding and settling claims

It is the purpose of this program to equip both Government and industry representatives with the knowledge necessary to secure the greatest relief - or to suffer the least amount of harm - from construction contract changes, whether they be consciously ordered or result from uncontrollable circumstances.

Because the subject is an intensely practical one, the course is similarly one of practical thrust. It tells you what you need to know about the elements - and the nuances - of the various types of changes, about your responsibilities, about your rights, about your remedies, about the dollar considerations. This course tells you about all those things that bear upon the preference of changes, upon the sensible settlement of claims and - if all else fails - upon the prosecution and defense of such claims.

Course Curriculum

INTRODUCTION

1. Laying the Groundwork

1. Government construction - special features
2. Comparisons with private construction
3. Need for modification mechanism
4. Development of modification techniques

2. Types of Changes and Claims

1. Changes in work
2. Differing site conditions
3. Delays in work
4. Suspensions of work
5. Acceleration of performance
6. Interrelationships and comparisons

CHANGES IN WORK

3. Changes Clause Coverage

1. The language and its evolution
2. Clause scheme and clause techniques
3. “Within the [contract’s] general scope”
4. The “cardinal change” doctrine
5. Contract breach vs. contract change
6. Deductive change vs. convenience termination

4. The Contracting Officer (C.O.) and Changes Authority

1. C.O.'s role and control
2. C.O. authority - scope and limitations
3. C.O. representatives - their powers
4. Authority delegations - express and implied
5. Apparent authority - myth and misadventure
6. C.O. ratification - a saving grace
7. Contractor protection techniques
8. Need for written directives

5. Formal Change Orders

1. How change orders originate
2. Types of formal change orders
3. Processing and issuance
4. Contractor protests
5. Government duty to clearly direct
6. Contractor’s duty to perform change

6. Constructive Changes/General

1. Explanation of the doctrine
2. Its mechanics and results
3. Contractor notice requirements
4. Contract administration guidelines

7. Constructive Changes/Applicability

1. Constructive orders for extra work
2. Government interference with work
3. Defects in specifications and drawings
4. Contract interpretation problems
5. Impossibility/impracticability of performance
6. Government misrepresentation or nondisclosure
7. Acceleration of performance
8. Contract administration guidelines

DIFFERING SITE CONDITIONS

8. General Analysis

1. The problem and its permutations
2. General legal principles
3. Development and pattern of the clause
4. Definition of site
5. Time of condition’s occurrence
6. Man-made vs. natural conditions

9. Recovery for Misrepresentation

1. Relief when conditions and contract differ
2. What is “indicated” in the contract
3. Misrepresentation vs. no representation
4. Information outside the contract
5. Contractor’s right to rely

10. Recovery for the Unanticipated

1. The elements of relief
2. “Unknown physical condition”
3. “Unusual nature” of condition
4. Condition not “ordinarily encountered”
5. Contractor site investigation duty
6. Off-site information
7. Government's superior knowledge

11. Operating Problems

1. Variation in estimated quantities
2. The stop work problem
3. Effect of Government disclaimers
4. Contractor notice requirements

DELAYS IN WORK

12. Impact and Consequences

1. Cancer effect on job performance
2. Inexcusable delays - default and damages
3. Excusable delays - relief possibilities
4. Concurrent delays - who gets what
5. Treatment in modification clauses

13. Excusable delays

1. Acts of God
2. Public enemy
3. Government acts
4. Weather
5. Strikes
6. Labor supply
7. Financial difficulty
8. Subcontractor delays

SUSPENSIONS OF WORK

14. Clause Evolution

1. Causes of suspensions and stoppages
2. Blame and burdens
3. Breach of contract remedy
4. Development of the special clause

15. Suspension Relief Factors

1. Ordered suspensions
2. Constructive suspensions
3. Requirement of Government fault
4. The sovereign immunity problem
5. Reasonable vs. unreasonable delay
6. The profit pinch
7. Relief under other clauses
8. Contract notice requirements

ACCELERATION

16. Basics of Acceleration

1. The theory of acceleration
2. Acceleration vs. expedited performance
3. The acceleration/delay relationship
4. “Changes” clause relief
5. Ordered accelerations
6. Constructive accelerations

17. Constructive Acceleration

1. Contractor’s excusable delay
2. Notice to Government of delay
3. Government denial of time extension
4. Government acceleration order “request”
5. Contractor preservation of rights

PRICE AND TIME ADJUSTMENTS

18. Types of Relief

1. Entitlement vs. quantum
2. Time extensions
3. Price increases
4. Release from liability

19. Calculation of Time

1. Sources of data
2. Reasonable time factor
3. “As bid” vs. “as built” charts
4. CPM and other scheduling techniques
5. Concurrent delay calculations
6. Acceleration calculations
7. Measuring effect on progress; examples

20. Disruption/Impact Costs

1. Scope of recovery
2. Types of recoverable costs
3. Applicable contract clauses
4. Reservation of rights to recover
5. Project reporting
6. Documentation
7. Necessary support materials

21. Calculation of Dollars

1. Equitable adjustment principles
2. “Objective” vs. “subjective” adjustments
3. Contractor’s reasonable costs
4. Detailed proof
5. “Jury verdict” proof
6. “Total cost” proof

22. Major Pricing Elements

1. Labor costs
2. Equipment costs
3. Material costs
4. Bonding costs
5. Subcontractor costs, overhead and profit
6. Inefficiency and idle labor factors
7. Cumulative impact
8. Special delay and standby factors
9. Special acceleration factors
10. Cost escalation factors
11. Claims processing costs
12. Overhead - home office and jobsite
13. Profit

23. Deductive Modifications

1. Determining price reduction
2. Unbalanced bidding effects
3. Loss of “learning curve” benefit
4. Unabsorbed overhead
5. Profit adjustment
6. “Truth in Negotiation” requirements

24. Claims Presentation and Defense

1. Contracting Officer, Board and Court
2. Comptroller General
3. Extraordinary relief possibilities
4. Early recognition
5. Documentation required
6. Reservation of rights
7. Claims preparation and certification
8. Necessary elements of proof
9. Claims defense strategies
10. Negotiation factors
11. Settlement considerations

25. Claims Litigation

1. Before the Boards
2. Before the Courts
3. Procedures
4. Strategies

The Course Director

Geoffrey T. Keating Of Counsel in the Washington, DC law offices McManus, Schor, Asmar & Darden, L.L.P., specializing in construction claims and litigation. Member of various organizations including the American Bar Association's Public Contract Law Section; Chairman of that Section’s Committee on Construction Claims and past Chair of the Committee on State and Local Claims and Remedies; Arbitrator for the American Arbitration Association's Construction Industry Panel; Fellow of the American College of Construction Lawyers. Author of many articles on equitable adjustments, claims and construction matters. Bachelor of Arts degree from Ohio Wesleyan University; Juris Doctor degree from The George Washington University National Law Center.