The agency directed the contractor to replace non-fire-rated plywood with fire-resistant plywood. The contractor claimed this wa a change, and that the contracting officer’s representative (COR) had authorized the use of non-fire-rated plywood. But the CBCA denied the appeal, reasoning that a COR does not have authority to bind the agency.
Framaco International, Inv. V. Department of State, CBCA 7573
- Fire Retardant Plywood Requirement – The government hired the contractor to build an embassy in Papua New Guinea. The contract required the contractor to use fire-retardant plywood backing panels.
- COR Direction – The contractor asked the COR whether fire-retardant plywood panels were required for rooms without equipment. The COR stated that fire-retardant plywood was only required for use with electrical equipment, so fire-retardant plywood was not required in all rooms. Due to this communication, the contractor used non-fire-rated plywood in rooms without equipment.
- Claim – The agency, however, later determined that the use of non-fire-rated plywood did not comply with the contract. The contracting officer directed the contractor to install fire-rated plywood throughout. The contractor submitted a claim for the addtional costs. The agency denied. The contractor appealed to CBCA.
- Contract Required Fire-Rated Plywood – The CBCA denied the contractor’s appeal. The board reasoned that non-fire-rated wood was not listed among the materials permitted for construciton. What’s more, the board thought the specifications clearly required for use of fire-rated plywood.
- COR Lacked Authority – The contractor argued that the COR had authorized use of non-fire-rated plywood. But the board found the contractor should not have relied on the COR. The COR doesn't have authority to bind the agency or modify specifications.
The contractor is represented by Douglas L. Patin and Erik M. Coon of Bradley Arant Boult Cummings LLP along with Sam Z. Gdanski and Abraham S. Gdanski of Gdanski Law PC. The government is represented by Matthew S. Tilghman, Thomas D. Dinackus, and Alexandra N. Wilson of the Department of State.
--Case summary by Craig LaChance, Editor in Chief