Government Contracting Database
Variations in Estimated Quantities
As a general rule, the Variation in Estimated Quantity clause provides for an equitable adjustment in the contract price when the quantity of a pay item is an estimated quantity, and the actual quantity varies more than 15 percent above or below the estimated quantity. FAR 52.211-18. The recognized purpose of this clause is to apportion the risk of an overrun or underrun in estimated quantities resulting from factors not reasonably apparent to the parties at the time they entered into the contract.
Although the percentage limitations of the clause are strictly applied in determining entitlement to an equitable adjustment, the Variations in Estimated Quantities clause will not be enforced where the quantity variation is cognizable under either the Changes or Differing Site Conditions clause. Burnett Const. Co. v. United States, 26 Cl. Ct. 296, 306 (1992) (citing United Contractors v. United States, 177 Ct. Cl. 151, 368 F.2d 585 (1966)); Dunbar & Sullivan Dredging Co., ENGBCA 3165, 73-2 BCA ¶ 10,285.
Variation in Estimated Quantities clauses requires proof of an actual increase or decrease in costs due solely to the variation above 115% or below 85% of the estimated quantity. Foley Co. v. United States, 11 F.3d 1032, 1033 (Fed. Cir. 1993). In Foley, the court makes it clear that the plain language of the clause is controlling and that without proof of an actual increase or decrease due to the variation, a party cannot succeed under it. Id.
Similarly, it has been held that the clause is not applicable when the cause of the variation is an erroneous estimate resulting from the active misrepresentation, deliberate wrong, gross or inexcusable error, or the negligence of the government. Appeal of Raytheon Missile Sys. Co., ASBCA No. 57594, 13 BCA ¶ 35264 (citing Maya Transit Company, ASBCA No. 20186, 75-2 BCA ¶ 11,552); Womack v. United States, 182 Ct.Cl. 599, 389 F.2d 793 (1968); Chemical Technology, Inc. v. United States, 227 Ct.Cl. 120, 645 F.2d 934 (1981). Indeed, the bidder does not assume responsibility for the government’s miscalculation, error or negligence:
[W]here a negligently-prepared estimate by the government results in additional costs to a contractor, the contractor should be entitled to reimbursement for such costs.
Integrity Management International, Inc., ASBCA No. 18289, 75-2 BCA ¶ 11,602.
Updated: July 10, 2018