Contractor Properly Used Cheaper, Nonconforming Performance Method

Friday, February 23, 2018 4:33 am
March 2018 - Volume 40 Number 3

Specifications --- Waiver

Appeal of: American West Construction, LLC, 2017 ASBCA No. 61094 Lexis 455 (Dec. 19, 2017)

The government had the right to insist upon compliance with contract specifications, but it waived that right through acquiescence to a change.

American West Construction, LLC (American West) performed design-build construction services for the U.S. Army Corps of Engineers (Corps) on a $2.6 million project to build bridges over irrigation canals in El Paso County, Texas. To access the site of one of those bridges, the contract, which was awarded in August 2015, instructed American West to construct two temporary bridges over another canal and drainage ditch. Undisputedly, American West did not do this.

Instead, the contractor proposed what it believed was a quicker, safer, and more efficient method: accessing the construction site via a levee on property held by the County Water Improvement District. American West indicated to the government its intention to use the levee in the Construction Site/Traffic Control Plan it submitted to the Corps in September 2015. (Uncertain whether the Water District would provide the necessary easement, American West did prepare, at a cost of $20,000, to use temporary bridges as a backup.)

The government's response to the Traffic Control Plan was to note that "[h]aul roads provided in this submittal have not been approved by the government as provided in the contract documents" and to call for the necessary permit. American West notified the government that the permit was forthcoming; indeed, the easement was executed by November 10, 2015. American West updated the Corps on the permitting progress in a November 2015 meeting. The contractor then proceeded, substantially completing its contract work in May 2016.

The following month, the Corps demanded that American West calcu[..]