Former Secretary of Defense Donald Rumsfeld once explained that there are the known unknowns and the unknown unknowns. Some greeted that gnomic pronouncement with bemused smiles.
But contractors operating in a contingency environment know exactly what he was talking about.
No mere mortal can accurately predict, much less price, all of the risks involved in supporting and accompanying the military in various hot spots around the world. Planate Management Group, LLC v. United States, a case currently before the Court of Federal Claims (COFC), is a good example.
In Planate, a contractor providing support services in Afghanistan has asserted claims for the cost of arming its in-theater personnel when the security situation changed dramatically for the worse.
In light of deteriorating security conditions in Afghanistan, including a fatal insider attack, the military issued a new security directive. To comply with that directive, the contractor purchased weapons to arm its in-theater personnel. The contractor submitted a claim to recover the costs of arming its personnel. The government denied the contractor’s claim, and the contractor filed suit at the COFC, alleging (among other things) that the changed security conditions amounted to a cardinal change. The COFC denied the government’s motion to dismiss for lack of subject matter jurisdiction because the contractor had properly presented its claim for a cardinal change to the contracting officer (CO).
Claims for cardinal changes to the contract are rarely successful. Although the court considered only whether it had jurisdiction to hear Planate’s allegations and has not yet addressed the merits of Planate’s cardinal change theory, the case offers an interesting and potentially promising approach for contractors to recover when they experience major changes to the circumstances under which they are performing.
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