The agency directed the contractor to fix non-compliant work. The contractor argued its work complied because the agency had approved its design submission. But the CBCA said approval of a non-compliant submission does not obviate the contractor’s duty to perform in accordance with the contract’s terms.
Framaco International, Inc. v. Department of State, CBCA 7561
- Claim – The contract was for the construction of an embassy in Papua New Guinea. The contract required the installation of residual current devices (RCD) — a type of ground-fault circuit breaker – around electrical receptacles. The government determined the contractor had not installed the RCDs correctly; they were located in the wrong place and not accessible. The government directed the contractor to fix the issue. The contractor alleged this was a change. The contractor submitted a claim for the redo costs. The agency denied. The contractor appealed.
- Approval of Submittal – The contractor argued the agency had approved a design submission with the RCDs. The board, however, reasoned the government’s approval of a submittal does not amount to an acceptance of non-compliant work, The approval of a non-compliant submission does not negate the contractor’s obligation to perform according to the contract’s terms.
- Contractor Did Not Comply – The board concluded the contractor had not complied with the requirements for RCDs. The contract required that electrical equipment, like an RCD, that operated at 50 volts had to have front panels that protected against incidental contact. The contractor’s RCDs did not have a front panel. The contract also required that the RCDs had to be “readily accessible.” The contractor’s RCDs needed to be opened with a screwdriver.
- Relocation of RCDs – The contractor argued it was also entitled to compensation for having to relocate the RCDs. The contractor alleged the contract contained latent ambiguities concerning the location of the RCDs. The board agreed the contract was ambiguous as to location. But the board opined the ambiguity was patent. The contractor thus had a duty to inquire. Here, the contractor never attempted to resolve the ambiguity so it could not recover.
The contractor is represented by Douglas L. Patin, Erik M. Coon, and Jennifer of Bradley Arant Boult Cummings LLP along with Sam Z. Gdanski and Abraham S. Gdanski of Gdanski Law PC. The government is represented by Thomas D. Dinackus, Matthew S. Tilghman, and Alexandria N. Wilson of the Department of State.
–Case summary by Craig LaChance, Editor in Chief
