The availability of an equitable adjustment should not depend upon the choice of contract clauses. Equity also requires flexibility. Apart from the determination of costs', additional leeway is implicit from the equitable' nature of the adjustment and the fact that it is merely to be based on' and not necessarily equivalent to the cost differential. The standard, being an equitable one, needs to be flexible in its application. It is not to be applied so rigidly as both the Board and the court, in their very different ways, applied it.
Equity means keeping both parties whole.
It does not require payment of an excessive profit nor that the contractor incur an unforeseen loss. There should be no penalty, nor windfall, to the contractor or to the agency. The spreading of cost and inefficiency based on total estimated units is an accepted practice. The VEQ clause's purpose is based on that assumption and is meant to prevent windfall profits or significant hardships by large changes in the estimated quantity stated in the contract. In summary, while the Federal Circuit in Foley sets forth guidance for measuring an equitable adjustment under the VEQ clause, Foley does not require that all equitable adjustments for variations in quantity occur under the VEQ clause.