2
Public Contract Law Journal • Vol. 31, No. 1 • Fall 2001
taken collectively, can be greater than the sum of the effects of the individual
change orders.
1
Although a change order may directly add, subtract, or
change the type of work being performed in one particular area of a construc-
tion project, it also may affect other areas of the work that are not addressed
by the change order. In Coates Industrial Piping, the Veterans Affairs Board
of Contract Appeals (VABCA) explained that it is a “change order’s un-
foreseeable impact on [this] unchanged work that lies at the core of the
cumulative impact claim.”
2
According to this theory of recovery, “the issu-
ance of an unreasonable number [or unusual kind] of change orders creates
a synergistic disruptive impact such that the total disruption caused by the
changes exceeds the sum of the disruptive impacts caused by the individual
change orders when looked at independently.”
3
Cumulative impact claims
are exceedingly difficult to prove. However, because the costs of labor inef-
ficiencies can dramatically alter the price of any complex construction proj-
ect, contractors, the Government, and private owners likely will continue
1. Pittman Constr. Co., GSBCA No. 4897, 4923, 81–1 BCA ¶ 14,847, 73,297 aff’d,
Pittman Constr. Co. v. United States, 2 Cl. Ct. 211 (1983).
The following cases are illustrative of decisions in which boards of contract appeals
have awarded damages for cumulative impact claims: David J. Tierney Jr., Inc., GSBCA
Nos. 7107, 6198 (5855)-Rein., 88–2 BCA ¶ 20,806, at 105,121 (awarding damages to a
contractor for the cumulative impact of numerous changes to the contract made by the
Government); Atlas Constr. Co., GSBCA Nos. 7903 et al., 90–2 BCA ¶ 22,812, 114,564
(awarding contractor the full amount of its loss of labor productivity claim where the
contractor’s performance “was burdened by the number of change orders, hidden condi-
tions and tenant directed changes”); Bechtel Nat’l, Inc., NASA BCA No. 1186–7,
90–1 BCA ¶ 22,549, 113,182 (finding that contractor was entitled to an equitable ad-
justment of $443,462 based on a $4,155,176 cumulative impact claim); Space Age Eng’g,
Inc., ASBCA Nos. 25761, 25982, 26020, 26381, 28346, 86–1 BCA ¶ 18,611, 93,478
(awarding damages on a contractor’s claim where the Government’s failures caused the
contractor’s inefficiencies); Fruehauf Corp., PSBCA No. 477, 74–1 BCA ¶ 10,596,
50,221 (holding that contractor was entitled to impact costs resulting from the issuance
of a large volume of changes late in the contract work). State cases include C. Norman
Peterson Co. v. Container Corp. of Am., 218 Cal. Rptr. 592 (Cal. Ct. App. 1985); Amelco
Elec. v. City of Thousand Oaks, 98 Cal. Rptr. 2d 159 (2000), cert. granted, 11 P.3d 956
(Cal. 2000).
2. “Cumulative impact is the unforeseeable disruption of productivity resulting from the
‘synergistic’ effect of an undifferentiated group of changes.” Coates Indus. Piping, Inc.,
VABCA No. 5412, 99–2 BCA ¶ 30,479, 150,586. It should be noted that providing a
specific definition suitable for every situation is an extremely difficult task because courts
and boards have articulated a host of differing definitions. In fact, in some cases, boards
have neither defined nor even mentioned the words “cumulative impact,” but awarded
such costs anyway. See, e.g., Charles G. Williams Constr., Inc., ASBCA No. 33766, 89–2
BCA ¶ 21,733 (awarding contractor damages for the collective disruptive effect on labor
productivity of twenty-six change orders that corrected errors in the drawings and speci-
fications). Yet, in many of the other cases discussed in this Article, cumulative impacts
were defined in great detail, but no equitable adjustment was granted.
3. Michael R. Finke, Claims for Construction Productivity Losses,26Pub. Cont. L.J.
311, 317 (1997).