The contractor alleged the agency constructively changed the contract when it required the contractor to add a thicker coat of foam insulation. The ASBCA disagreed. The foam the contractor used didn’t comply with the contract. The agency didn’t change the contract; rather, it adapted to the contractor’s non-compliant performance.
Appeal of ECC International Constructors/Metag (JV), ASBCA No. 62124
- The Claim – The contract required foam insulation with a cementitious finish, that complied with the International Building Code, that limited flame spread ,and had a thermal barrier. The contractor used foam that didn’t meet those requirements. The agency directed the contractor to apply an additional layer of the non-compliant foam to add a thicker thermal barrier. The contractor alleged this amounted to a constructive change.
- No Constructive Change – The board found the agency had not changed the contract. To prove a constructive change the contractor must show that it performed work not required under the contract. Here, the agency never directed the contractor to perform out-of-scope work. Rather, the contractor failed to comply with the contract. The direction to apply a thicker level of foam was simply an attempt to mitigate non-compliant performance.
- Austere Standards – The contractor argued the contract did not require a foam to meet certain requirements because the contract incorporated Austere standards that exempted contactors in Afghanistan from codes that would apply in the U.S. The board noted that while the contract incorporated Austere standards, the standards made an exception for any code that the agency actually assigned. Here, the agency had assigned the International Building Code, and the Austere standards did not delineate any specific exemption from the International Code.
- Variation/Modification – The contractor argued the agency had approved a variation that allowed the use of non-compliant foam. The board, however, found the contract had a variation process, and the parties had not followed it. The contractor had not properly requested a variation, nor had the agency approved one.
- Prior Course of Dealing – The contractor also argued that its prior course of dealing had established that the foam insulation it used was acceptable. The board rejected this argument, too. The contractor had not shown the prior course of dealing involved, the same contracting agency or the same contract provision.
The contractor is represented by R. Dale Holmes and Ryan Boonstra of Cohen Seglias Pallas Greenhall & Furman, P.C. The government is represented by Michael P. Goodman, Martin Chu, Samuel J. Harrison, and Katherine M. Smith of the Army Corps of Engineers.
–Case summary by Craig LaChance, Senior Editor
