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  • Question

    Is an endangered species/Bald Eagle nesting in a tree on a construction site considered an unusual circumstance, and therefore a differing site condition under FAR 52.236-2 or an Act of God under FAR 52.249-10, Default (Fixed Price Construction)? Is the Contractor due an equitable adjustment for redesign to shift the building under FAR 52.236-2 or is the contract only due time under FAR 52.249-10?


    Answer

    Generally, Federal Government projects must consider impacts to wildlife (see Endangered Species Act) and federal employees must take action as needed to protect the environment.  Based on the limited information we have in this case I believe this would be a change under the Changes clause for construction at 52.243-4.  The contracting officer can order this change to protect an endangered species and should allow the contractor to request an equitable adjustment in accordance with the clause.

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