Government Contracts Out-of-Scope Work Entitled Contractor to Recover Costs
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Tuesday, March 31, 2020

Out-of-Scope Work Entitled Contractor to Recover Costs

By Government Contracts Editorial Staff

An appeal seeking additional compensation was sustained as to entitlement by the Armed Services Board of Contract Appeals because the government increased the scope of the work. The contractor claimed the government’s requirement to include descriptions of 10- and 20-level tasks increased the scope of the contract to create 30- and 40-level technical manuals and programs of instruction for training the Afghanistan National Army to maintain an armored vehicle. The government argued the lower-level manuals were inherently incorporated in the contract work because higher-level tasks could not be performed without first accomplishing lower level tasks. However, the contract only required production of 30- and 40-level manuals and programs of instruction, and the statement of work clearly excluded 10- and 20-level tasks.

Government’s Revised Expectations. The government also argued the SOW’s instruction to use government furnished information consisting of 10- and 20-level manuals “as a reference point for [technical manual] development” created an affirmative duty to create lower level manuals. However, the government accepted the contractor’s proposal to simply incorporate references to the lower-level manuals. Any ambiguity in the SOW was so obscure that the contractor had no duty to inquire regarding its meaning, and the contractor had no notice of the government’s contrary view of the GFI until it received a second round of comments, when it had completed nearly all 30- manuals and performed substantial work on the creation of the 40-level manuals. The contractor was not responsible for the costs of the government’s mid-stream reformation of the SOW to satisfy a previously undisclosed requirement. (Command Languages, Inc., ASBCA, ¶95,961)

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