Change Of Excavation Plans Led to Utility Damage, Contractor Liable

Friday, August 03, 2018 3:49 am
August 2018 - Volume 40 Number 8

Implied Warranty --- Differing Site Conditions

Appeal of General Dynamics Information Technology 2018 ASBCA Lexis190 (June 26, 2018)

A contractor who failed to prove the government was responsible for marking an underground utility one of its subs hit is on the hook for repair costs.

General Dynamics Information Technology (GDIT) was the prime contractor under a U.S. Army indefinite-delivery, indefinite-quantity contract. In July 2012, the Army issued a fixed-price delivery order under which GDIT agreed to upgrade the communications network at Fort Drum, New York. GDIT was obliged to “engineer, furnish, install, secure, test, document, migrate and cutover a turn-key solution to upgrade the existing infrastructure.” GDIT subcontracted with InterCounty Excavation (ICE) to perform the excavation work required.

During work on the project, ICE severed an existing communications cable duct bank. In response, the government modified the delivery order (Mod. 10), instructing GDIT to repair the damaged utility. Although GDIT disclaimed culpability for the utility strike, it agreed.

Later, GDIT sought to recover its repair costs, arguing that the government was liable for the utility strike because it breached the parties’ contract and an implied warranty against defective specifications. GDIT also alleged the underground cable was a differing site condition. The contracting office (CO) denied GDIT’s $624,000 claim. The Armed Services Board of Contract Appeals also denied GDIT’s appeal to recover the repair costs.

Contract outlined parties’ subsurface responsibilities

The question before the Board was: Who was liable for the utility strike? Two documents included with the delivery order---a performance work statement (PWS) and a technical data package (TDP)---detailed responsibility for marking utilities and obtaining project permits.

The first, the PWS, stated that site-specific information provided by the Army “represents the Government&rsquo[..]