If all apples are fruit, then why are all fruit not apples? Because the part does not represent the whole. A Government Contractor discovered this when it learned that all unsuitable material was unsatisfactory material; but, all unsatisfactory material was not unsuitable material. Let me explain . . .
Under a Contract with the U.S. Army Corps of Engineers for two explosives storage magazines and a storm drain at Picatinny Arsenal, New Jersey, “unsatisfactory materials” were to be replaced with satisfactory materials. Basically, “unsatisfactory materials” included anything that could not be used as backfill.
As is typical, the Corps answered several pre-bid questions that later became amendments to the Contract. One of the Corps’ answers stated, “assume unsuitable material is not encountered.” The Contractor improperly equated “unsuitable material” with “unsatisfactory material.”
Although the term “unsuitable material” was not separately defined in the Contract, the Court found that other Contract provisions (e.g., pre-bid Q&A’s, specs, and soil borings) helped to define it as “unsatisfactory material” but only at certain depths/locations. Thus, the pre-bid Q&A did not pertain to “unsatisfactory materials” generally; but, only a subset of unsatisfactory materials – “unsuitable materials.”
While the whole included the part (unsatisfactory material included all unsuitable material), the part did not equal the whole (unsuitable material did not include all unsatisfactory material).
Show Your Work
A mentor of mine once said that process and procedures can be more important than substance and results. Like solving a math problem, how you solve it is often more important than the answer itself. The same is true in resolving construction contract disputes with public owners.
Substandard is Not Defective
The government need not follow the industry standard. It can do less or more.
Hide, Seek, & Seek
Have you ever played hide and seek? If you are the seeker, do you win the game when you find the hidden person? Yes, of course! Unless, you’re a government contractor.
Contractor Schooled School
Have you ever done exactly what you were supposed to do, but it didn’t work and you were blamed anyway? Nevertheless, if contractors follow the owner’s plans and it still doesn’t work, the contractor may be without fault – this is as it should be.
Walk It Off, Keep Going
During a recent soccer game, my seven-year-old son took the ball squarely in the face. But, he walked it off and continued playing. Contractors must do the same with changes.
Are We There Yet?
Next time you close a deal, get the essential terms on paper and signed by all parties before it’s Miller Time.
Show Me the Money!
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Reasonable ≠ Ratio
“Circuit court litigation comes at a price, sometimes a heavy price.”
Words Matter
Remember the adage, “what you say today could bite you tomorrow.”
Recently, a Contractor won its argument before the Armed Services Board of […]
