Appeal alleging defective specifications and constructive change is denied. A contractor can only recover on a defective specification claim if they relied on the specifications in preparing their bid. Here, the board found that the contractor had not fully understood the specifications and thus could not have relied on them. The contractor alleged that the specifications were impossible. But the board opined that the contractor had never actually attempted to comply with the specifications. A contractor cannot claim that a specification was impossible if they did not attempt to perform as contracted. The contractor also alleged that the agency constructively changed the contract. The board rejected this claim, finding that in preparing its bid, the contractor had not relied on the portions of the contract that were allegedly altered.
The Army Corps of Engineers issued an RFP seeking replacement of two aircraft taxiways in South Carolina. The RFP specified that contractors could use one of two types of concrete placement taxiways: (1) the fixed-form method, or (2) the slipform method. Depending on the method chosen, the contractor had to comply with different procedures that affected the formulation of the concrete, the procedure for mixing it, and the timing of its placement.
Fixed-form placement involves use of ready-mix concrete hauled in an mixer truck. The concrete is deposited between rails, which hold it while it sets up. The RFP provided that if a contractor chose the fixed-form method, the concrete had to be deposited at the site within 90 minutes from when the cement had been mixed.
Slipform concrete placement requires the mixing of concrete at a stationary batch plant. The mix is then transported in non-agitating dump trucks. The concrete is spread with a paver on-site. Forms or rails are not used to support the edges, so the mixture must have sufficient cohesion when it arrives. The RFP provided that if a contractor chose the slipform method, the concrete had to be transported in non-agitating equipment in less than 15 minutes.
Brantley Construction Services, LLC submitted a bid in response to the RFP. Brantley did not plan to self-perform the contract. Instead, it intended to subcontract out the project. In preparing its bid, Brantley obtained estimates from subcontractors. But, as the board noted, Brantley did not know how these subcontractors planned to deliver the concrete, what kind paving they would use, or whether they could comply with the RFP’s delivery limitations.
Brantley had not obtained a firm commitment from a subcontractor prior to bidding. Nevertheless, Brantley received the contract. After award, Brantley began requesting proposals from subcontractors. These subcontractors all proposed using the slipform method but with ready-mix concrete delivered in an agitating truck. None of the subcontractors proposed using slipform placement with a batch plant as required by the RFP. Indeed, one of the subcontractors notified that it did not have a batch site for the slipform method, and that it could only perform if Brantley obtained a deviation from the specifications.
Brantley asked the Corps for a deviation so it could use the slipform method with ready-mix trucks, which would allow 90 minutes for placement. Brantley stated that it could not get dump truck from on offsite plant within the 15 specified by the contract. The Corps denied the request and instructed Brantley to follow the specifications in the contract.
Brantley attempted to self-perform the contract using the fixed-form method. Brantley prepared test lanes for government inspection using the fixed-form method. Brantley’s test lanes, however, “failed miserably.”
The Corp issued a cure notice notifying Brantley that its lack of progress was endangering performance. Brantley responded that it had bid with the intent of deviating from the contract to use the slipform method with ready-mix trucks.
After further discussions, the Corps granted Brantley’s request for a variance, allowing the company to use a slipform method with a ready mix truck. BCS was able to hire two subcontractors, one to perform at each of the two airfields. Brantley finished paving the airfields.
Brantley submitted a request for an equitable adjustment to the Corps seeking over 1.4 million in additional compensation for the project. The Corps denied the request. Brantley then submitted a claim asserting defective specifications and constructive change theories. The Corps denied the claims. Brantley appealed to the ASBCA.
Brantley alleged that the government’s specifications were defective. The company claimed that after award, it determined that the it was impossible to comply with the contract haul time requirements to accomplish the less expensive slipform method of paving. Indeed, Brantley, alleged that the term “haul time” as used in the contract was ambiguous
The board noted that the warranty of specifications does not relieve a contractor of the duty to comprehend the stated requirements, investigate the site, and prepare a bid that complies with the requirements. Where a contractor alleges that it based its bid on an ambiguous specification, it must show that it relied on that specification in making its bid.
The board found that Brantley had failed to prove that it actually relied on its interpretation of “haul time.” Instead, the evidence showed that Brantley lacked an adequate of understanding of what was required of the contract to perform either fixed-form or slipform paving. The record showed that Brantley did not even know about the 15-minute haul time requirement before submitting its bid. The estimates it received from subcontractors did not rely on the haul time requirements. In fact, even in the subcontractor proposals Brantley received after award, none of the subcontractors attempted to comply with the 15-munite requirement.
In lieu of reliance, Brantley alleged that it was impossible to comply with the 15-minute haul time. The board rejected this argument, finding that Brantley never attempted to fulfill the stated requirements in the contract. It never proved which method it intended to use in its bid, nor that it understood the costs of each method. The board noted that even if it were to find the 15-minute haul time impossible, if would not find in Brantley’s favor on the defective specifications theory. The protection of an implied warranty of specifications does not apply to a contractor that has not done what it contracted to do.
Brantley also alleged that the government had constructively changed the contract. Brantley claimed that the Corps had indicated in the RFP that a batch plant would be available, but that plant was not, in fact, available.
The board, however, found Brantley’s argument flawed. To prevail on a claim that the government constructively changed the contract regarding the batch site, Brantley had to prove that it reasonably interpreted the contract to require a batch location, and that government changed the contract by preventing Brantley from using the batch site. But Brantley had not proved that it had reasonably relied on the availability of a batch location. As noted, Brantley had not even proved which method of paving it would use and thus had not established whether it even needed a batch site. As a matter of fact, Brantley’s principal had testified that the company’s bid had not contemplated a batch site. Without this reliance on the purported batch location provision, the board was disinclined to find a constructive change.
Brantley is represented by William A. Scott of Pederson & Scott, P.C. The government is represented by Michael P. Goodman, Laura J. Arnett, and Allie E. Vandivier of the Army Corps of Engineers.
