“It’s Raining, It’s Pouring, There’s Specifications You’re Ignoring”: ASBCA Finds Contract Required Claimant to Replace Gutters; Appeal of H2LI-CSC, JV, ASBCA No. 62086

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Appeal seeking costs incurred by contractor in replacing gutters is denied. The contract was for the repairs of roofs. The contractor argued the contract did not  also require it to replace gutters on the buildings because the scope of work merely referred to the project as a re-roofing project. But the board noted that the contract also required the contractor to conform to specifications and drawings. Those specifications and drawings explicitly stated that the contractor had to remove and replace gutters as part of the project.

Background

The Army Corps of Engineers awarded H2LI a task order to replace roofs on two buildings at a military base. During performance, a dispute arose as to whether the task order required H2LI to remove and replace the gutters on the buildings. H2LI did not believe it was obligated to replace the gutters. The Corps disagreed. H2LI submitted a claim for the cost of replacing the gutters. The Corps denied it. H2LI appealed to the ASBCA.

Legal Analysis

  • The Contract Clearly Required Replacement of Gutters — The task order and the scope of work only generally referred to roof repair. But the task order included DFARS 252.236-7001, which required that work conform to the contract’s specifications and drawings. The specifications explicitly stated that H2LI had to remove and replace the existing gutters. Photographs included with the task order further specified replacement of the gutters. 
  • The Specifications Did not Contradict the Scope of Work — H2LI argued that because the scope of work did not mention gutters, replacement of gutters was not required. The board opined that while the scope of work merely referred to the work a “re-roofing project,” it directed the contractor to the specification to see what this meant. No reasonable contractor would read a few substantive words  in the Scope of Work as representing a comprehensive statement of the work required by the contract.
  • Inclusion of Inspection Report Did Not Create Ambiguity — The task order included an inspection report for the roof, which had indicated that the gutters were in good shape. H2LI contended this created an ambiguity regarding the replacement of gutters. The board, however, reasoned that report had been included for informational purposes. Nothing in the task order directed the contractor to act in accordance with the report.
  • The Corps Never Accepted H2LI’s Interpretation of the Contract — H2LI intimated that the Corps had effectively agreed that the contract did not require gutter replacement because the agency dad not immediately objected to meeting minutes discussing gutter replacement. The board rejected this argument, reasoning that it interprets the contract based on the terms of the contract, now how it infers other people may have interpreted it. In any event, when the dispute over the gutters arose, the Corps made it quite clear that it disagreed with H2LI’s interpretation.

H2LI is represented by Bernard Mandel. The government is represented by Michael P. Goodman and Carlton A. Arnold of the Army Corps of Engineers.

ASBCA - H2L1-CSC, JV