Government Contracting Database
Bilateral Change Order
A bilateral change order to a contract is a supplemental agreement where the parties agree that specified additional work will be accomplished in return for a specified consideration, normally additional money and/or time. Where a contractor accepts and signs without reservation or protest a bilateral contract modification making an equitable adjustment, it is barred by accord and satisfaction from later claiming an additional adjustment. That bar runs as to all claims based upon events that occurred prior to an agreement; those matters that were not then in dispute and those claims specifically reserved in the contract modification are not barred. Scott Taber, Complainant, EEOC DOC 0120083624, 2012 WL 1637256, at *1 (May 3, 2012); Appeal of Ttf, L.L.C., ASBCA No. 58452, 15-1 B.C.A. (CCH) ¶ 35848 (Dec. 22, 2014); Laka Tool & Stamping Co. v. United States, 639 F.2d 738, 742-43 (Ct. Cl. 1980), reh. denied, 650 F.2d 270 (Ct. Cl. 1981), cert. denied, 454 U.S. 1086 (1981); Zinger Construction Co. v. United States, No. 434-79C (Ct. Cl. Sept. 19, 1980) (court speaking order) (28 CCF 80,721); and B. D. Click Co. v. United States, 614 F.2d 748, 756 (Ct. Cl. 1980).
It should also be noted that there is a longstanding interpretative approach that the Courts have followed in reviewing bilateral modifications granting time extensions. Namely, the action of the contracting parties in agreeing to a new performance schedule eliminates from consideration the causes of delay occurring prior to the extension. Taylor Corporation, ASBCA Nos. 37139, 38351, 90-2 BCA par. 22,693, aff’d on recon. 90-3 BCA par. 22,958; Sierra Blanca, Inc., ASBCA Nos. 30943, 32286, 34838, 91-2 BCA par. 23,990; RFI Shield-Rooms, ASBCA Nos. 17374, 17991, 77-2 BCA par. 12,714; Winder Aircraft Corporation of Florida, ASBCA Nos. 4364 and 4733, 58-2 BCA 12044. Moreover, where the modification fails to include a waiver or release of claim, the failure to reserve a claim for delay costs is not fatal to a later claim when the circumstances do not indicate the parties’ intention to include the delay costs. See, e.g., Chantilly Construction Corp., ASBCA No. 24138, 81-1 BCA par. 14,863; JDV Construction, Inc., ASBCA No. 37937, 89-3 BCA par. 22,012; Beaty Electric Company, Inc., EBCA No. 408-3-88, 90-2 BCA par. 22,829.
Nevertheless, even in the absence of a bilateral agreement, when a contracting officer grants a time extension in response to a delay claim, we have treated the action as (1) an administrative determination that the delay was not due to the fault or negligence of the appellant and as (2) raising a rebuttable presumption that the government was responsible for the delay. Page Construction Co., ASBCA No. 30266, 89-1 BCA par. 21,488 at 108,255 (citing Robert McMullan & Son, Inc., ASBCA No. 19023, 76-1 BCA par. 11,728 at 55,903).
Updated: May 24, 2018