No Constructive Change Where Specs Spelled Out Installation Method

Friday, February 23, 2018 4:36 am
March 2018 - Volume 40 Number 3

Specifications --- Contract Interpretation

Appeal of: Buck Town Contractors & Co., 2018 ASBCA Lexis 9 (Jan. 11, 2018)

The government didn’t stop a contractor from using noncompliant installation methods until it was well into its work, but the contractor will bear the liability for its mistake.

The U.S. Army Corp of Engineers (Corps) awarded to contractor Buck Town Contractors & Co. (Buck Town) multiple task orders for construction of a hurricane protection levee in St. Charles Parish, Louisiana. Under the parties’ contract, Buck Town agreed to place a layer of geotextile material at the base of the levee in two areas. After much of that work had been completed, the Corps objected to Buck Town’s method for laying the geotextile material and ordered the contractor to reconstruct the levee. Buck Town responded by submitting a notice for constructive change. The dispute centered on this question: whether the contract specifications allowed the geotextile material to be placed with seams/overlaps that ran perpendicular or parallel to the centerline of the levee.

The first of two task orders relevant here required a layer of geotextile material to cover an area approximately 120 feet wide x 2,900 feet long. Buck Town’s subcontractor used rolls of material that measured 15 feet x 300 feet. The sub placed as many full-length panels as possible, but, to minimize waste, it also placed 60-foot partial-length panels in some rows, joining the panels with a 2-foot overlap.

Buck Town claimed that this method satisfied the contract specs, which permitted pl[..]