As a Government Contractor, when have you agreed to perform a certain way, but later realized that another way is better for everybody?  When the Government agrees, expressly or impliedly, to the alternative performance, it waives a credit for the unperformed work.

In a recent example, under a design-build contract, a Government Contractor agreed to construct permanent bridges over irrigation canals in El Paso County, TX. (As an aside, the coldest night of my life was spent in Guadalupe National Park, just east of this project at negative 15 degrees in December.)  The Contractor’s original plan included temporary bridges.  After contract award, the Contractor successfully and timely performed its work without the temporary bridges.   The Army Corps of Engineers knew of the Contractor’s plan and the changes to that plan, but without objection.  Nevertheless, the Government sought a credit for unperformed, temporary bridges.

The Armed Services Board of Contract Appeals held that where the Government agrees to a planned method, but then does not object to a change in that method, the Government waives a credit, if any, for the savings from the change in method.

Read more about this example at Board Backs Contractor In Corps Cost Discovery Dispute

Appeal of American West Construction, LLC, ASBCA No. 61094 (December 19, 2017).

Published On: January 8, 2018

Share This Story, Choose Your Platform!

  • Sum Certain Blog Post

Jurisdiction is Power

August 27, 2023|

Not bad power, but the ability of a decision-maker (e.g., court) to decide which side is right (or which is more correct). […]

  • Heavy Construction Law | Mediation Melee | Roads & Bridges

Roads & Bridges | Mediation Melee

June 13, 2023|

MEDIATION MELEE| An arbitration case can be costly

Arbitration can be a bridge over troubled waters. In this crossing, the parties argued over […]

  • Written Notice | Roads & Bridges Article | Jon Straw

Roads & Bridges | Written Notice

April 2, 2023|

WRITTEN NOTICE | Beware that strict compliance of the contract might be required.

When an owner replaced a contractor for significant safety violations, […]

Share This Story, Choose Your Platform!