Government Specified a Proprietary Item and then Wrongly Refused Contractor’s Substitute Item; Appeal of Carothers Construction, Inc., ASBCA No. 62204

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Appeal of a claim seeking costs incurred due to disagreement over whether the contractor could use a substitute item is granted. The contract specified a certain type of roof decking. The contractor proposed alternative decking, but the government refused and forced the contractor to use the decking specified in the contract. The board found that the item specified in the contract was proprietary. As a result, the contractor was permitted to propose a substitute item. The agency did not bother to consider whether the proposed substitute was equivalent to the specified item. Absent rebuttal evidence from the agency, the board concluded that the proposed item was an acceptable equivalent, and the contractor was entitled to costs.

The Air Force issued a solicitation for construction of a middle school on a base. The solicitation specified that the school had to have a 2½ inch acoustical roof deck.

Carothers Construction, Inc. planned to bid on the solicitation. But Carothers researched the available roof decking and found that the only one manufacturer produced a 2½ inch roof deck. Thus, Carothers submitted a bid with 2 inch roof deck. The government accepted Carothers’ bid.

Following award, Carothers sent its roof deck submittal to the government for approval. The submittal was not approved. The government informed Carothers that the contract specified a 2½ deck and that Carothers 2 inch deck was a variation.

After further discussions, Carothers and the government agreed that Carothers would engage a third-party engineer to determine whether Carothers’ 2 inch deck was acceptable for the project. Carothers hired an engineer, who opined that the 2 inch deck met or exceeded the requirement specified in the contract. Carothers sent the engineer’s report to the Air Force, but the agency never responded.

Carothers submitted a claim seeking $319,000 for the costs it incurred as a result of the disagreement over the roof deck. The Air Force denied the claim, reasoning that the government was entitled to the benefit of the roof deck it had specified and should not have pay Carothers additional money for an item was not specified.

The parties ended up settling a portion of Carothers’ claim, but Carothers appealed the unsettled portion to the ASBCA. On appeal, Carothers argued that the 2½ requirement in the contract was proprietary. Thus, Carothers contended, under the FAR 52.236-6 Material and Workmanship clause included in the contract, the company had right to submit a substitute product.

The board noted that to prevail an substitute item claim under the Material and Workmanship clause, a contractor must establish three elements: (1) the contract specified a proprietary item, (2) the contractor submitted a substitute item along with sufficient information for the CO to evaluate the substitute, and (3) the proposed substitute met the standard of quality represented by specification.

The board found that Carothers had established the first element. When an item only has one source, it is, by definition, proprietary. Here, Carothers had shown that only one manufacturer produced 2½ inch decking. Nothing in the record showed that the Air Force even tried to locate a second source.

Given that the government’s specified decking was proprietary, Carothers had a right under the Material and Workmanship clause to submit a substitute with enough information for the CO to evaluate the substitute. The board found that Carothers had submitted a substitute with sufficient information. Indeed, Carothers’ proposal contained information on the 2 inch decking. Also, the company’s deck approval submittal had contained side-by-side comparison of the 2 inch and 2½ inch deck. Moreover, Carothers had provided the Air Force with a report from an engineer.

Finally, the board found that Carothers proposed roof deck met the standard of quality specified by the solicitation. The board reasoned that the Air Force had not bothered to considere the information provided by Carothers much less rebut it. The Air Force had the burden of showing that the offered product was not a sufficient substitute. In the absence of any rebuttal from the agency, the board found that Carothers had established that its substitute was equivalent.

Carothers is represented by Ralph B. Germany, Jr. of Bradley Arant Boult Cumming LLP. The government is represented by Michael P. Goodman, Kathleen P. Miller, and David C. Brasfield of the Army Corps of Engineers.

ASBCA - Carothers Construction