Rather, a fundamental alteration of this type is a contract breach, entitling the contractor to breach damages. General Contracting Constr. Co. v. United States, 84 Ct.Cl. 570 (1937); Stapleton Constr. Co. v. United States, 92 Ct.Cl. 551 (1940, 1941); Magoba Constr. Co. v. United States, 99 Ct.Cl. 662, 690 (1943); F.H. McGraw Co. v. United States, 130 F. Supp. 394, 397, 131 Ct.Cl. 501, 506 (1955); Saddler v. United States, 287 F.2d 411, 413-415, 152 Ct.Cl. 557, 561, 564 (1961); Aragona Constr. Co. v. United States, 165 Ct.Cl. 382, 390-391 (1964); J.D. Hedin Constr. Co. v. United States, 347 F.2d 235, 257-258, 171 Ct.Cl. 70, 105-106 (1965); Wunderlich Contracting Co. v. United States, 351 F.2d 956, 965-966, 173 Ct.Cl. 180, 193-195 (1965); Tufano Contracting Corp. v. United States, 356 F.2d 535, 541, 174 Ct.Cl. 398, 407-408 (1966); Keco Indus., Inc. v. United States, 364 F.2d 838, 847-848, 176 Ct.Cl. 983, 998-999 (1966), cert. denied, 386 U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 105 (1967); Luria Bros. Co. v. United States, 369 F.2d 701, 707, 177 Ct.Cl. 676, 687 (1966). See, also, Freund v. United States, 260 U.S. 60, 62-63, 43 S.Ct. 70, 67 L.Ed. 131 (1922).
Kiewit contends that any additional work required of Summit was covered by section 4 of the Kiewit-Summit Subcontract which authorized Kiewit to make additions to Summit's work for commensurate compensation. A similar contention was raised in Saddler v. United States, 287 F.2d 411, 152 Ct.Cl. 557 (1961) with regard to a provision in a contract to provide materials and labor for the construction of a levee embankment which permitted the contracting officer to make changes in the contract specifications provided they were within the general scope of the contract. The government contracting officer made a change order requiring 7950 cubic yards of enbankment at the same unit price as in the original agreement for 5500 cubic yards.
As in all breach of contract cases, the proper measure of damages for defendant's breaches is the amount of plaintiff's extra costs directly attributable to said breaches. Saddler v. United States, supra. [ 287 F.2d 411, 152 Ct.Cl. 557 (1961)] These take the form of delay damages compensated as increased overhead incurred as a result of the protracted performance. Moreover, the contractor is entitled to recover its additional expenditures directly attributable to the breach.
We have recognized that the point at which a change must be considered to be beyond the scope of the contract and inconsistent with the "Changes" article is a matter of degree varying from one contract to another. Saddler v. United States, 287 F.2d 411, 152 Ct.Cl. 557 (1961). Moreover, "a determination of the permissive degree of change can only be reached by considering the totality of the change and this requires recourse to its magnitude as well as its quality."
Id. at 255. Although the court did not address the question of whether state or federal law was applicable to the issue in what is presumed to be a diversity action, it cited both a court of claims case, Saddler v. United States, 287 F.2d 411 (Ct.Cl. 1961); and the state court decision in Oberer Construction Co., supra. See also Westinghouse Electric Corp., v. Garrett Corp., 437 F. Supp. 1301 (D.Md. 1977) (court sitting in diversity found that federal law controlling government contracts would provide "persuasive guidance" to interpretation of changes clause in subcontract for component parts of United States Air Force enemy radar jamming devices, where subcontractor alleged alternative theories of breach, one of which was cardinal change), aff'd 601 F.2d 155 (4th Cir. 1979).
The existence of a cardinal change is principally a question of fact, requiring that each case be analyzed individually in light of the totality of circumstances. See Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 194, 351 F.2d 956, 966 (1965); Saddler v. United States, 152 Ct.Cl. 557, 561, 287 F.2d 411, 413 (1961). It may well be that plaintiff will be able to satisfy the burden of going forward with a prima facie case simply by offering the record from the ASBCA proceedings. Since the applicability of the cardinal change doctrine was not before the Board, however, defendant should be afforded the opportunity to present any relevant evidence to the trial judge before this matter is finally resolved.
J. D. Hedin Construction Company v. United States, 1965, 347 F.2d 235, 257, 171 Ct.Cl. 70. "[A] determination of the permissive degree of change can only be reached by considering the totality of the change and this requires recourse to its magnitude as well as its quality." Saddler v. United States, 1961, 287 F.2d 411, 413, 152 Ct.Cl. 557. Damages can be recovered without fulfillment of the written notice requirement where the changes are outside the scope of the contract and amount to a breach. Id.
United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918); J.D. Hedin Constr. Co. v. United States, 347 F.2d 235, 171 Ct.Cl. 70 (1965); Laburnum Constr. Corp. v. United States, 325 F.2d 451, 163 Ct.Cl. 339 (1963); Helene Curtis Indus. v. United States, 312 F.2d 774, 160 Ct.Cl. 437 (1963); Leal v. United States, 276 F.2d 378, 149 Ct.Cl. 451 (1960); Warren Bros. Roads Co. v. United States, 105 F. Supp. 826, 123 Ct. Cl. 48 (1952); Potashnick v. United States, 105 F. Supp. 837, 123 Ct.Cl. 197 (1952); Montrose Contracting Co. v. County of Westchester, 80 F.2d 841 (2d Cir. 1936).Cf. Air-A-Plane Corp. v. United States, 408 F.2d 1030, 187 Ct.Cl. 269 (1969); Saddler v. United States, 287 F.2d 411, 152 Ct.Cl. 557 (1961). It is not necessary to treat with this additional "breach" theory of relief, in light of the conclusions expressed above that plaintiff is entitled to relief under the plain meaning of the "Suspension of Work" clause, and that such relief is not interdicted by the so-called "Rice" doctrine.
In the absence of government fault, however, compensation for and correction of the errors is provided for by the contract. In Saddler v. United States, 287 F.2d 411, 152 Ct.Cl. 557 (1961), an Article 3 change order case, also relied on by Jefferson, plaintiff argued that the change was beyond the scope of the contract and in breach thereof. That case is in applicable to the changed condition claim presented by Jefferson.
For example, the Board has rejected the argument that the "cardinal change" rule is applicable to Article 9 even though the clause provides that proposed changes must be "within the general scope" of the contract — words which, when used in the standard "Changes" clause, form the basis for declaring an act to be a cardinal change. See Saddler v. United States, 287 F.2d 411, 413-415, 152 Ct.Cl. 557, 561-564 (1961). The Board's position rested on the view that under the Capehart Act "Changes" clause: