The intent and purpose of FAR Clause 52.211-18 Variation in Estimated Quantity, is to allow for a degree of difference in the Government's Estimated Quantities with set percentage variances. Has a COR who by allowing a Contractor to perform above the established variance, 100% in this case, without a KO's approval or modification to the contract set himself for a possible unauthorized commitment. Does anyone interpret this clause as to allow a Contractor to exceed the estimated quantity by this much without prior approval of the KO?

By joel hoffman on Wednesday, January 02, 2002 - 05:45 pm:

Julie, the intent of the construction VEQ Clause, 52.211-18, is NOT to "allow for a degree of difference" between the actual and estimated quantities. It is only intended to describe the conditions under which either party may ask for an adjustment to the unit price, if the actual quantity of a unit-priced item varies by more than 15% from the estimated quantity. The clause also allows for a time extension, due to the variances. The Clause does NOT place a limit on authorized work for payment. The prescription for the clause says to use the clause WHEN a fixed price construction contract is contemplated that authorizes a variation in the estimated quantitiy of unit-priced items. The key is that somewhere else in the contract a variation is allowed.

What does the contract, as a whole, say? Generally, in Corps Of Engineers' construction contracts, the technical specifications describe the measurement and payment provisions. The specs, along with the contract drawings, describe the actual scope of work in the contract. The technical specs describe how the item will be measured for payment and state that the Contractor will be paid for the work accomplished within the "pay line" limits of the plans and specs.

Do you have a limitations of funds clause or something similar? Do you have any other language in the contract requiring notification to the KO before exceeding the estimated quantities?

Unless there is some other limitation in the contract, the Contractor may exceed the estimated quantities without "prior approval of the KO", as long as it is performing the work required by the contract plans and specs. happy sails! joel hoffman

By Vern Edwards on Wednesday, January 02, 2002 - 08:18 pm:

Julie:

The clause you cited is for a unit-priced construction contract. Ordinarily, the contractor may exceed the estimated quantity to the extent necessary to complete the work described in the drawings and specifications; it doesn't need contracting officer approval or a modification to do so. The fact that the COR "allowed" the contractor to exceed the estimated quantity would not ordinarily constitute an unauthorized commitment.

Note that I said "ordinarily." You have to read the clause in the context of the entire contract, which may include special clauses that Joel and I don't know about.

By Mary C on Thursday, January 03, 2002 - 02:26 pm:

Anytime the estimated quantity is exceeded by 100% I would say there is a problem that needs to be looked into and a contract that needs to be modified. Do we even have the money to pay for this additional work? I believe the COR had a responsibility to bring the descrepancy in the estimated quantity to the KOs attention as soon as it was noticed.

By Vern Edwards on Thursday, January 03, 2002 - 02:39 pm:

I agree that the COR should have notified the CO that something was wrong, but I don't think that failure to do so constitutes an unauthorized commitment. Moreover, the CO should be proactive about keeping tabs on contract performance. I was a construction contracting officer for the Air Force and for the Department of Energy, and unless the estimated quantities are very small, so that a 100 percent overrun could happen very quickly, I can't imagine not finding out about a potentially significant variation in quantity early in the game.

By joel hoffman on Thursday, January 03, 2002 - 03:47 pm:

I can see where the KO, on a COE construction contract, would not be aware of an overrun, unless or until it becomes a problem. A Resident Engineer is usually the ACO. Mary and Julie, your District should have SOP's regarding management and administration of unit priced quantity overruns. USACE put out policy several years ago on contract administration procedures and the PM should have been fully informed to ensure that adequate funding has been arranged. You can view our Center's contract admin SOP's for estimated quantity variations at Chapter 2, Section 15 of our Contract Admin Plan (similar to the Mobile District's SOP), based on USACE guidance. If your Distict's ACO's are authorized to execute Admin Mods, the KO might not be aware of quantity overruns - unless it becomes a problem.
http://www.hnd.usace.army.mil/chemde/cap/s15.pdf

happy sails! joel hoffman

By joel hoffman on Thursday, January 03, 2002 - 04:48 pm:

I spoke with Julie, this afternoon. We agreed that the problem concerns the COR's action beyond his contractual authority, in directing some additional unit-priced contingency work, beyond the amounts currently funded in the contract. The contract is written to allow the KO to order the contingency work, at the unit prices established for such contingency work, but not the COR . Since the additional work will require funding beyond that available in the contract, the COR should not have ordered the work. The contract contemplated contingency work but only provided enough funds (quantity) for one time need for this. We agreed that the actual work performed was not a change.

The KO can clearly mod the contract to add the additional funds for the overrun - that's not the problem. The question Julie now has is how to handle the past action of the COR and how to stop these type actions in the future. Hmmm. I would put the COR and his Division on notice that it can't happen again/ won't be tolerated and anyone will lose their COR credentials if they do it again. From a professional perspective, I don't think they will risk that. happy sails! joel