Eric:

You say, "The most cogent argument is simply the standard release."

Are you saying that the use of the word "consideration" in the contractor's statement of release, as it appears in FAR 43.204(c)(2), is an argument in support of your contention that an equitable adjustment is consideration?

By Eric Ottinger on Wednesday, March 29, 2000 - 07:07 pm:

Vern,

The distinction is not an issue. We all agree. I believe that I have said this several times.

It is not necessary to make the terms mutually exclusive to maintain the distinction. Clearly “equitable adjustment” is a more restrictive and more specialized term.

Equitable adjustment is not always for a Government action and not always under the Changes clause.

The most cogent argument is simply the standard release. Perhaps you should elaborate on what you meant by common usage. It looks like standard, carefully worded legalese to me. (It is most certainly not current, idiomatic, plain English.)

“Ordinarily, COs cannot give gifts of the taxpayers' money. Unless the parties agreed to do so as part of the original contract, a CO cannot give a contractor more money unless he or she gets something in return -- some consideration. However, Congress has authorized agencies to grant "extraordinary contractual relief" in some cases because it is essential to the national defense. In short, extraordinary contractual relief is a congressionally authorized gift. “

We all agree. However, at what point in this scenario is validity or enforceability an issue? I don’t see it.

If consideration can mean no more and no less than “something in return” I don’t see where we have an issue.

If I say that “lawful purpose” is a necessary element of a contract, you wouldn’t argue that I can’t have a lawful purpose without forming a contract. I trust Professor Nash wouldn’t pursue such bad logic. But he can speak for himself.

Anyway, we seem to be in agreement that Professor Nash has not yet taken a position on this particular issue.

Regards,

Eric

By Eric Ottinger on Wednesday, March 29, 2000 - 12:29 pm:

Peggy,

Yes, I think we usually say “consideration” for something that we have thought through and reached mutual agreement. “Equitable adjustment” is appropriate for a unilateral action or something unintended that happens. See FAR 46.407 Nonconforming supplies or services.

(f) When supplies or services are accepted with critical or major nonconformances as authorized in paragraph (c) of this section, the contracting officer must modify the contract to provide for an EQUITABLE PRICE REDUCTION OR OTHER CONSIDERATION. In the case of conditional acceptance, amounts withheld from payments generally should be at least sufficient to cover the estimated cost and related profit to correct deficiencies and complete unfinished work. The contracting officer must document in the contract file the basis for the amounts withheld. For services, the contracting officer can consider identifying the value of the individual work requirements or tasks (subdivisions) that may be subject to price or fee reduction. This value may be used to determine an EQUITABLE ADJUSTMENT for nonconforming services. …

As Vern knows, complex major systems (e.g. fighter aircraft) are almost never accepted without nonconformances. Perhaps, in some formal way, the validity of the contract or the supplemental agreement is at issue. I doubt the parties ever give this much thought – as the Government accepts the aircraft. The “equitable price reduction,” “other consideration,” equitable adjustment,” or whatever is simply a quid for a quo.

(Evidently, the fellow who wrote this clause wasn’t aware that “the term "equitable adjustment" is used to describe an adjustment granted by a contract clause to compensate a contractor for an act or omission by the government.”)

(Please note that I am not a lawyer and I don’t claim any expertise other than what pops up in a casual word search. Either 1) the term “consideration”is so intuitively obvious that lawyers normally don’t think about it, or 2) this argument is so ridiculous that no self-respecting lawyer would want to participate or 3) none of this is as simple or as cut and dried as some of us would like to think, which would make a prudent lawyer keep his/her distance.)

(I should note that there is a distinction between the Common Law Courts and the Equity Courts and the use of the term "equitable" may simply mean to use the approach that an "Equity" Court would use. Although "equitable" connotes "fair," this is probably not what "equitable" means in this context. As I told John, we are always fair.)

Regards,

Eric

By Peggy Richter on Wednesday, March 29, 2000 - 10:48 am:

as a non PHD in this area, I'd like to ask both Vern and Eric the following: It seems to me that BOTH consideration and equitable adjustment are based on quid pro quo (value for value received).
In the scenario Vern mentions (a changes clause stating no additional cost if implemented) the presumption is that the INITIAL "consideration" (ie value) offered to the contractor is sufficent to allow for any such changes. In equitable adjustement, the way I have viewed it, the problem is that, for one reason or another, the "value" to one side or the other of the contract parties has shifted. The shift can be due to action or inaction by either of the parties. In other words, the VALUE as initially contemplated, has changed, because something has changed in what has been contracted FOR. So to bring the contract back into "balance" (quid pro quo) an "equitable adjustment" is needed. That is, after all, what "equitable adjustment" really means in English. - adjusting things to make them equitable again. If the Contractor INCREASES the value based on Government action/ inaction vise the terms of the contract, they are entitled to the "value" differential. So on a bottom-line level, it seems to me that equitable adjustment and consideration ARE related, but they occur at different times (ie have linear differences).

By Vern Edwards on Tuesday, March 28, 2000 - 10:20 pm:

Eric:

The point that you seem to be missing is that the term "equitable adjustment" is used to describe an adjustment granted by a contract clause to compensate a contractor for an act or omission by the government. The equitable adjustment is not needed as an element of contract. Thus, it is not consideraton.

A contract would not fail for lack of consideration if it included a changes clause that required the contractor to comply with change orders "at no additional cost to the government." Such a clause would be binding as long as the consideration for the original contract was adequate. (However, the government would have trouble finding many firms that would sign up to such a contract.) Thus, equitable adjustments are not necessary in order to bind the parties, but to compensate one of the parties for the effect of an act or omission of the other.

If the government wants to make a change which no clause authorizes it to make, then it must give the contractor consideration, because the contractor never agreed to such a change when it signed the original contract, and in agreeing to comply with the change it would be making a new promise requiring new consideration.

Your discussion about modifications without consideration deals with matters that do not arise under a contract clause. In the cases of a modification without consideration as authorized in FAR Part 50, the modification is not made pursuant to a clause, but to give the contractor some relief, usually more money, because he is in economic difficulty. Usually, a contracting officer cannot give a contractor more money just because the contractor is in financial difficulty. Ordinarily, COs cannot give gifts of the taxpayers' money. Unless the parties agreed to do so as part of the original contract, a CO cannot give a contractor more money unless he or she gets something in return -- some consideration. However, Congress has authorized agencies to grant "extraordinary contractual relief" in some cases because it is essential to the national defense. In short, extraordinary contractual relief is a congressionally authorized gift.

The distinction between consideration and equitable adjustment is really a very basic concept of government contract law. I have tried to explain the distinction in as many ways as I know how, and I have now exhausted my resources. I'll just have to bow out by saying, again, that the distinction between consideration and equitable adjustment is fundamental. They are two entirely different ideas.

You can submit this question to Prof. Nash by writing a letter to The Nash and Cibinic Report.

By Eric Ottinger on Tuesday, March 28, 2000 - 08:31 pm:

Most of the time when we say “consideration” we mean the “quid” for the “quo,” not more and not less. There seems to be general agreement that this is acceptable as a casual or informal usage.

Also, we all agree that “consideration” is a necessary element of a valid Government contract. And many authoritative definitions so indicate. For instance--

Oran's Dictionary

Something for something; this for that. The giving of one valuable thing for another. A quid pro quo can be the consideration (see that word) required for a valid contract.

CON 210

quid pro quo "that for this" -- descriptive of the requirement of consideration in contracts.

An “equitable adjustment” is a “quid” for some kind of unilateral action by one of the parties, usually the Government, usually under the “Changes” clause. Since the contract is a valid contract before the change and a valid contract after the change, “equitable adjustment” is not required for the contract to remain valid.

Joel and I view an "equitable adjustment" as “a particular type of ‘consideration’."

Vern and maybe John consider the terms to be mutually exclusive, “entirely different concepts.”

The standard release for an equitable adjustment seems to equate “consideration” and “equitable adjustment,” and a couple of District Courts have used the term synonymously. Vern considers the first instance to be “common usage, not legal usage” and the other instances to be mere carelessness.

When all else fails, let’s appeal to the Supreme Court--

US-SUP-CT, 4 CCF 61,066, FOGARTY, TRUSTEE v. U. S., (Nov. 06, 1950)

“Shortly after Pearl Harbor, Congress granted to the President under§201 of the First War Powers Act, 55 Stat. 838, 839, 50 U. S. C. App.§611, the power to authorize Government agencies to make amendments and modifications of contracts for war supplies without regard to CONSIDERATION if “such action would facilitate the prosecution of the war.” Throughout the war, departments and agencies of the Government utilized the provisions of the Act and regulations thereunder to alleviate hardships encountered by war contractors in an economy geared to all-out war.”

See also--

FAR 50.302-1 Amendments without consideration.

“(a) When an actual or threatened loss under a defense contract, however caused, will impair the productive ability of a contractor whose continued performance on any defense contract or whose continued operation as a source of supply is found to be essential to the national defense, the contract may be amended WITHOUT CONSIDERATION, but only to the extent necessary to avoid such impairment to the contractor’s productive ability.”

Note also, that after FASA, Congress allowed us to modify contracts by updating clauses in ways that benefited the contractor, without “consideration.”

I don’t see any reason to think that the validity of the contract was an issue in any of the instances where the term “consideration” was used above. The Court, the Congress and the FAR all say that under certain circumstances we might amend the contract to give the contractor a benefit without “consideration” (i.e. the usual price adjustment “quid” for the “quo” benefit that the contractor receives).

If Congress and the Supreme Court can use the term “consideration” in a context where the validity of the contract is clearly not an issue, I think the rest of us can safely do the same.

Nor do I see any reason to think that the Court, Congress or the FAR have been “careless”.

My Merriam Webster Third New International Dictionary includes the following definition for “consideration”--

8: something given as recompense: as a: PAYMENT, REWARD b (1): something that is legally regarded as the equivalent or return given or suffered by one for the act or promise of another : an act or forbearance or the promise of it done or given by one party in return for the act or promise of another – see GOOD CONSIDERATION, VALUABLE CONSIDERATION (2) a: a judgment of a court -- in consideration of prep: as payment or recompense for

This dictionary puts the less restrictive definition first and puts it in a clearly legal context. Further, I think we can safely conclude that “in consideration of” is standard legalese and that it equates to payment. I am not quite sure what Vern means by “common usage” distinguished from “legal usage.” But, it would seem pretty clear that the “consideration” in the standard release equates to “payment,” equates to the “equitable adjustment.”

(I cite the Merriam Webster Third International with the awareness that it caused a considerable scandal when it first came out. It refused to endorse all of the strictures that many of us had learned from our schoolmarms. I trust that most of us have got over it by now.)

I found FAR 46.407 interesting because I assumed that “equitable adjustment” would only result from a change initiated by the Government. Clearly, not so.

Also, it seems pretty clear that the “equitable price reduction” is “consideration” and that it “equates to the “equitable adjustment” later in the paragraph.

FAR 46.407 Nonconforming supplies or services.

(f) When supplies or services are accepted with critical or major nonconformances as authorized in paragraph (c) of this section, the contracting officer must modify the contract to provide for an EQUITABLE PRICE REDUCTION OR OTHER CONSIDERATION. In the case of conditional acceptance, amounts withheld from payments generally should be at least sufficient to cover the estimated cost and related profit to correct deficiencies and complete unfinished work. The contracting officer must document in the contract file the basis for the amounts withheld. For services, the contracting officer can consider identifying the value of the individual work requirements or tasks (subdivisions) that may be subject to price or fee reduction. This value may be used to determine an EQUITABLE ADJUSTMENT for nonconforming services. However, when supplies or services involving minor nonconformances are accepted, the contract need not be modified unless it appears that the savings to the contractor in fabricating the nonconforming supplies or performing the nonconforming services will exceed the cost to the Government of processing the modification.

Vern,

I share your high regard for Professor Nash. I doubt very much that Professor Nash wishes to invest his reputation in this particular argument. However, he is welcome to submit a message if he wishes.

Eric

By Vern Edwards on Friday, March 24, 2000 - 06:13 pm:

Hi Joel:

Unfortunately, we still disagree -- consideration and equitable adjustment are entirely different concepts.

Consideration is something which is offered in exchange so as to induce another party to enter into a bargain. In the case of executory contracts, consideration takes the form of a promise or set of promises. See the Restatement at § 75 and the accompanying commentary. It is the government's promise to pay and to do the other things that the contract would require of it that is the consideration exchanged for the contractor's promise to perform.

(An executory contract is one that will be performed after the contract has been made. An executed contract is one that has been fully performed. See Black's Law Dictionary. Government contracts in excess of the simplified acquisition threshold are usually executory contracts.)

Once a firm has entered into a contract with the government that includes the changes clause or any other clause that allows the government to make changes unilaterally, e.g., the Government Property clause at FAR 52.245-2, that firm has a duty to comply with orders issued by the contracting officer pursuant to the clause. It promised to do that when it entered into the contract in the first place. The change order transaction does not entail any new promise by either party. Therefore, no new consideration is required.

When a contractor complies with a change order he or she may be entitled to compensation, but only if the cost or time of performance is increased as a result of the contracting officer's order. The contractor must comply with the change order whether it is entitled to compensation or not.

Again: think of the underlying concepts. Consideration is an inducement to enter into a bargain; equitable adjustment is compensation for having kept a promise, given when certain conditions have been met. Consideration need not make a contractor whole, it need only act as an inducement; equitable adjustment must always make the contractor whole.

As part of the original contract bargain, the Contractor agrees to perform change order work for the consideration that the Government promises to make an equitable adjustment to the contract time and/or price, if affected by the change order and if the contractor properly asserts its right to the equitable adjustment.

In consideration for performance of the change by the Contractor, The Government promises to make an equitable adjustment, if applicable and if properly requested. Happy Sails! Joel

By Joel Hoffman on Friday, March 24, 2000 - 02:15 pm:

OK - to put it in simpler terms - after taking Vern's advice and looking the darned thing up -

1. From my Business Law course, 17 years ago, I learned that a contract is an agreement creating an obligation by each party to the other or to third parties. The agreement consists of promises by each party. The promises must be supported by "consideration" (see source 1, below).

2. "Consideration" is what a promisor demands and receives as the price for a promise to the other party of the contract (source 1). Therefore, I believe that an "equitable adjustment" is closely related to the concept of "consideration." They do not appear to me as completely separate and mutually exclusive concepts.

3. In general, (good "lawyer-like" talk, huh?), the Government promises to pay in consideration for a promise by the Contractor to perform the contract, per the contract's requirements. The amount of consideration is the contract price or an appropriate adjustment to the price, if warranted. The payment may take the form of an equitable adjustment or other adjustment (See source 2).

4. Other considerations may also induce a promise of performance, depending upon the circumstances - promises to loan the Contractor Government owned equipment, time extensions, risk sharing, etc., even forbearance by the Government for non-performance (source 2).

5. In general ,The Contractor promises to perform the contract in consideration of payment by the Government of the contract price for that performance or in consideration of some other promise to the Contractor (source 2).

6. So, it appears that the set of promises is the contract and the price exacted from the other party is the consideration. Consideration and equitable adjustments are not "entirely different things", are they, Vern???

7. My law for dummies information comes from source 1: Ronald A. Anderson's textbook, "Business Law," 11th Edition (Chapter 13) by South-Western Publishing Company. Deep discussion of the topic for non-lawyers and lawyers alike, in source 2: Nash and Cibinic's "Formation of Government Contracts", Chapter 2, "Contract Formation Principles".
Happy Sails! Joel

A correction to one of my earlier posts in this thread: The term "equitable adjustment" is older than the 1958 Army Corps of Engineers board case that I cited earlier. I have now traced the term back to the Standard Form 23 for construction contracts that was issued by the old Bureau of the Budget on Nov. 19, 1923. It appeared in Article 3., Changes: "If such changes cause an increase or decrease in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly."

I am going to see if I can find "equitable adjustment" in an older clause.

By Steve Cohen on Thursday, March 23, 2000 - 10:56 am:

Hey Team - I always thought of equitable adjustment as a course of action. It can be used at the discretion of a contractor to make himself whole when additional effort was expended, without consideration, and at the direction of the government . Therefore, I think Vern hit the nail on the head.

By Vern Edwards on Thursday, March 23, 2000 - 10:32 am:

Joel:

Fair enough.

The easy way to see the distinction between consideration and equitable adjustment is to recognize that consideration must precede the existence of an obligation, but the obligation to comply with a contract clause that provides for an equitable adjustment precedes agreement about entitlement to an equitable adjustment.

By the way, both the Restatement of Contracts and the Uniform Commercial Code say that executory contracts can be modified without consideration, even if there is no changes clause. See the Restatement at § 89 and the U.C.C. at §2-209.

As Eric has indicated, the usage of these terms is rather broad. Moreover, consideration is one of the more obscure doctrines in contract law; we could read a lot and talk a lot and still never get to the bottom of it. You have to think in terms of the underlying concepts and disregard common usage.

It's the concepts that matter.

Vern - Fully agreed with your position, until you said that an equitable adjustment isn't a form of "consideration". You were echoing me, albeit much more eloquently, except for that point. Of course, I'm out of town and Nash and Cibinic is on my desk, at the office. I WILL re-read them on this point. Happy Sails! Joel

By Vern Edwards on Thursday, March 23, 2000 - 01:59 am:

Eric is right that the word "consideration" is used in many ways. But we should not let that obscure the fact that when used as formal legal terms, consideration and equitable adjustment denote fundamentally different concepts.

Black's Law Dictionary defines consideration, in part, as follows:

"The inducement to a contract. The cause, motive, price, or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract."

(The complete article in Black's is quite long and should be read in its entirety. See, also, Restatement of the Law, Second, Contracts 2d, Ch. 4, articles § 71 through 109.)

Equitable adjustment is a term of art that is used exclusively, to the best of my knowledge, in government contracting. (The proof of this is that Black's does not define the term and mentions it only in passing.) The term originated in 1958, in Montag-Halvorson-Cascade-Austin, Eng. C&A (Army Corps of Engineers Board of Contract Appeals) 1075, in which the Board explained that the purpose of an equitable adjustment is to "to leave the parties in the same position costwise and profitwise as they would have occupied had there been no change, preserving to each as nearly as possible the advantages and disadvantages of their bargain." An equitable adjustment is not an inducement to enter into a contract, but compensation for the impact that an act or omission of one of the contracting parties has had on the other.

Consideration is a prerequisite to the existence of a contractual obligation. However, an equitable adjustment is not a prerequisite to a contractor's contractual obligation to comply with a change order. The contractor must comply, and is entitled to an equitable adjustment only if the change increased the cost of, or the time required for, performance of the contract. If the change did not have that effect, then the contractor is not entitled to anything.

The original consideration that bound the parties covers the contractor's obligation to comply with change orders and the government's obligation to make equitable adjustments, because those are the promises that they made to each other in the first place. There is no need for additional consideration. But if the parties agree to modify their contract in a way that is not covered by a clause, then additional consideration is required to make the change binding, because it wasn't part of the original bargain.

Another difference between consideration and equitable adjustment is that consideration need only be "adequate"; it need not be "equitable." See the Restatement, § 79.

I consider the use of the word "consideration" in the release of claims to be common usage, not legal usage. Boards and courts often use terminology carelessly; it might be because the judge who wrote the opinion is careless with his or her use of terminology, or because his or her usage reflects the way the parties used the terms. But despite careless usage, consideration and equitable adjustment are different concepts.

For these reasons, I disagree with Joel that an equitable adjustment is consideration. Consideration is one thing; equitable adjustment is an entirely different thing. The difference lies in their legal purposes.

I know that some of you bristle at the mere mention of Ralph Nash, but the man taught contract law at The George Washington University Law School for twenty years. He is a professor emeritus at that school. His books have been cited by the Court of Federal Claims and the Federal Circuit Court of Appeals. Look at his articles about consideration and equitable adjustment in The Government Contracts Reference Book, 2d ed.

By joel hoffman on Wednesday, March 22, 2000 - 06:24 pm:

John -

I wasn't clear enough, when I discussed price adjustments earlier under the "Supension of Work" Clause. As you correctly stated, no profit is allowed on such delay costs. The point I was trying to make was that I believe the term "Equitable Adjustment" had originated, specifically including "profit" in the price adjustment, and was once applied only to adjustments under clauses which allow profit, in addition to costs. However, in reviewing some recent ASBCA cases, the decisions included entitlement to "an equitable adjustment, pursuant to the Suspension of Work Clause." So, apparently, the term E.A. has expanded to include adjustments with or without profit - not just adjustments which include profit.

Regarding your point of disagreement with me - Of course, no additional "consideration" is necessay to validate the right of the KO to direct in-scope changes to the method or manner of performance or to the work. The original contract agreement already includes the "Changes" provisions, allowing the KO to direct in-scope changes. Consideration for that right was included when the parties signed the contract.

This is oversimplfying but the Contractor is entitled to an equitable adjustment, if the change order increases or decreases its cost or time to perform the contract and if it properly asserts its contractual rights to an adjustment in price and/or time.

If it does, the Government will provide consideration for a (hopefully, bilateral) modification, in the form of an equitable adjustment. Happy Sails! Joel

By John Ford on Wednesday, March 22, 2000 - 03:45 pm:

I have weighed in on the other side of this debate before. I disagree with your position on a strictly technical point, not on common usage or jargon. If consideration is a necessary element of that which is necessary to consitute a valid agreement, for what does an equitable adjustment consitute consideration? In a change order it is not to support the validity of the change order. The government can issue a change order without increasing the contract price or delivery schedule and the contractor is obligated to perform to that change order. It is up to the contractor to make a timely request for an equitable adjustment. If the contractor does not make a timely request (in no event after final payment) the contractor is out of luck and gets nothing.
As an aside, the Suspension of Work and Government Delay of Work clauses both explicitly exclude profit from the price adjustment due the contractor for government caused delay. The adjustment in this case is akin to damages for government misconduct and breach of contract not consideration in support of some agreement.

By Eric Ottinger on Wednesday, March 22, 2000 - 09:14 am:

Joel,

Of course, I agree. Many words in the English language have different meanings (related or totally unrelated) depending on the context.

"Consideration" is an element required for a contract to be valid, but the term can be used in other contexts with a less restrictive meaning. Anyway the courts don't seem to have any problem.

(The word search wasn't as easy as you would think. Most hits show "consideration" meaning "thoughtful attention." But English is like that.)

Regards,

Eric

I failed to add that consideration does not have to directly include money. Other types of consideration might include consideration for time, time extension, risk sharing or risk transfer (taking on some of the other party's risk), providing space for operations, allowing an equal or substitute requirement, etc.

Bottom line is that consideration can include an equitable adjustment or can be another form.
Happy sails! Joel

Eric:
"Consideration" is one requirement for a conract to be valid and binding.

In my opinion, an "equitable adjustment" is a particular type of "consideration." There are several types of consideration used to adjust contract terms. An E.A. is one. It has evolved over the years due to regulatory rules and regulations, business accounting practices and court and board decisions, such as including consideration for indirect impact costs, established rules rules for pricing increases, deleted work, severable work, time extensions, profit vs. no profit,etc.

A couple of other types of consideration, I can think of, off-hand, are adjustments for variation in estimated quantities of unit priced work, TFC, reimbursement at a pre-determined rate for extra work, reimbursement for increased Federal Excise taxes, etc. (I believe that the term "E.A." used to include profit on costs but have seen recent cases where the Board directed an equitable adjustment, without profit, under the Suspension of Work Clause).

"Consideration" does not require that the adjustment or contract amount be "fair" to either or both parties - it doesn't have to be a mutually good deal. One party can screw the other if the other party doesn't know the "value" or "cost" it is negotiating.

"Equitable adjustments", on the other hand, are generally supposed to be considered "fair and reasonable", thus "equitable", assuming that the parties know the "rules" and/or competiitive market pricing conditions......... Happy Sails! Joel

By Eric Ottinger on Tuesday, March 21, 2000 - 08:01 pm:

There has been some comment to the effect that the terms “consideration” and “equitable adjustment” are mutually exclusive; that is, they can’t be used in reference to the same price adjustment.

Although I don’t disagree regarding the usual usage for these terms, it might be helpful to look at the standard FAR release for an equitable adjustment following a change order. The usage in the following court cases is also instructive. As far as I can determine either “consideration” or “equitable adjustment” may be correct for a particular price adjustment. In any case, the Courts don’t seem to have a problem with this usage.

US-CT-APP-FC, 43 CCF ¶77,295, Commercial Products & Engineering Company Inc. v. William Cohen, Secretary of Defense, (May 12, 1998)

In CONSIDERATION of the modification agreed to herein as complete EQUITABLE ADJUSTMENT for the changes directed by modifications P00002 and A00001, the contractor hereby releases the Government from any and all liability under this contract for further equitable adjustment attributable to those changes.

US-DIST-CT, 3 CCF ¶720 , STIERS BROS. CONSTRUCTION CO. v. BRODERICK ET AL. d. b. a. BRODERICK & GORDON., (Apr. 07, 1945)

Reverting to the tunnel work, plaintiff makes much of an alleged oral agreement between it and the defendants, under the terms of which defendants were to pay plaintiff at its contract price for boring the tunnel first, deducting the amount of defendants’ costs for doing the work. As stated before in this opinion, the existence of such an agreement is a question of fact for determination by the arbiter and is not for this Court. However, to clarify the rights of the parties under the law, and without passing upon the efficacy of an oral agreement to change a written contract which provides that changes must be in writing, the Court points out that if the plaintiff was entitled to any CONSIDERATION by reason of the deletion of the tunnel work, the original written contract provided a method under and by which such consideration would be given, that is to say, the contract provided for an EQUITABLE ADJUSTMENT in case of change. Hence, since the so-called oral agreement contemplated a form of payment inconsistent and at variance with the principle of equitable adjustment, as established by the Supreme Court, it must be deemed to be a departure from the terms of the written contract itself. As such, to be enforceable, the oral agreement, if otherwise good, must be supported by adequate consideration. No such consideration appears. Hence it is unenforceable as a matter of law. This is axiomatic

US-DIST-CT, 41 CCF ¶77,029 , Tano Automation, Inc. v. United States of America, (Sep. 20, 1996)

This Supplemental Agreement constitutes full and final compensation for all costs, including costs of travel and inspection aboard the cutters such as discussed in the Contractor’s letter 4910-1681-165 dated 20 September 1989, associated with the Contractor’s Request for Equitable Adjustment as described in the following letters:
. . .

Once a party establishes that his opponent signed a release that addresses the claims at issue, received adequate CONSIDERATION, and breached the release, the opponent has the burden of demonstrating that the release was invalid because of fraud, duress, material mistake, or some other defense. We examine the totality of circumstances to determine whether the releasor has established an appropriate defense.