What do Requests for Equitable Adjustment (REA’s) and muscle cars have in common? Both are kind of dying out, slowly but surely.
REA’s have always been and will continue to be necessary when seeking an adjustment under the standard government contract changes clause. Prior to 1978, there was an explosion of REA’s based on the constructive change doctrine development by the administrative boards. They found they had to construct the doctrine to get around the fact they had no jurisdiction to hear breach of contract cases. Since l978, however, they have all dispute jurisdiction. Theoretically there is really no need for constructive changes.
All constructive changes were based on some type of contract breach. The duty to be clear (contract interpretation), the duty to provide error, omission and conflict-free documents, the duty to cooperate, communicate and not interfere, the duty to disclose superior knowledge and even acceleration claims were based on breach concepts.
But there really is little need for constructive change REA’s today. It still may be smart to file them since you can recover your administrative expenses including consultant fees in the process. And, calling your claim an REA may help with negotiations. However, these really all are breach claims and at some point you may have to certify them if you can’t settle. If you know you won’t settle, certify and call them by their correct name: claims.
If you have a FAR Part 12 commercial item contract, you have no changes clause and hence no opportunity for an REA. (The changes clause is illusory since changes must be bilateral and there is no equitable adjustment language anyway.) So, what you have is a breach claim pure and simple.
This is not just so much semantics. Damages for breach claims can vary from REA’s. More about that later . . . . I need to take a ride in my GTO.