The contractor agreed to repair a jetty using “blocky and angular” stones of various shapes and sizes. The contractor claimed rectangular-shaped stones with 90-degree sides satisfied the requirement. Not so, said ASBCA. The contractor’s rectangular stones were unquestionably blocky. They were not, however, angular. The board reasoned that angular refers to acute and obtuse angles, not to stone with flat, cubic, 90-degree angles.
Appeal of Trade West Construction, Inc., ASBCA No. 61068
Background
The Army Corps of Engineers awarded a contract to Trade West Construction for repair of a jetty in North Carolina. The contract required Trade West to use armor stone, each weighing between 14 and 22 tons, on the existing jetty. The stone had to be obtained from a government-approved quarry. Also, the contract required that the stones be “blocky and angular” in various shapes and sizes so they could interlock with each other on top of the jetty.
Trade West had proposed to obtain its stone from Fountain Quarry, an approved supplier. But once performance began, Fountain Quarry could not provide all the stone needed. Trade West proposed an alternative source, Salisbury Quarry. Salisbury, however, only provided stone in large, flat-sided rectangular blocks. The Corps did not think the Salisbury blocks met contract specifications—they were not “angular” and thus would not interlock sufficiently on the jetty.
After months arguing over the issue, the Corps allowed Trade West to use stones from Salisbury so long as Trade West shaped them to make them more angular. Trade West ended up using over 400 stones from Salisbury. After the contract was completed, Trade West submitted a claim to recover the $300,000 in costs incurred shaping the stone. The Corps denied the claim. Trade West appealed to the ASBCA.
Analysis
Salisbury Stones Were Not Angular
Trade West contended the unshaped stones from Salisbury satisfied the contract specifications, so it was entitled to recover the costs of the shaping the stones. The contract required stones that were “blocky and angular.” The stone from Salisbury were undoubtedly blocky. Trade West also reasoned that the stones were angular because they had angles and were not round.
The board disagreed. After reviewing copious expert testimony, the board opined that “angular” stones have acute or obtuse angles. The term “angular” does not refer to cubic or parallelogram-shaped stones with 90 degree angles. The rectangular blocks from Salisbury did not satisfy this definition of angular.
Salisbury Stones Were Not of Varying Shapes and Sizes
The board further noted that the contract required the armor stones to be of varying shapes and sizes. Trade West argued that while the Salisbury stones were blocky, they were not all rectangular, thus it had provided stones of varying shapes and sizes. But the board was not convinced. Trade West may have provided stones of various sizes, but the stones it used were all roughly retangular and thus were essentially the same shape.
Interlock Requirements
The contract also required the armor stones provided to form a compact mass and interlock with each other and existing stones. The board found that Trade West had not established that the unshaped Salisbury stones would have properly interlocked without the shaping.
Trade West is represented by Karl Dix, Jr. and Lochlin B. Samples of Smith, Currie & Hancock LLP. The government is represented by Michael P. Goodman, David C. Brasfield, Jr. and Carl E. Pruitt, Jr. of the Army Corps of Engineers.
–Case summary by Craig LaChance, Senior Editor
