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).
Roads & Bridges
Where Does the Buck Stop?
WHERE DOES THE BUCK STOP? | A shallow concrete pour leads to an interesting lawsuit
On the desk of President Harry S. Truman […]
Roads & Bridges | Reshaping Agreements
RESHAPING AGREEMENTS | Oral Agreements Must Be Written in Stone
Reuse, reshaping, and/or reapplication of existing materials was the goal in this roadway […]
Pay-If-Paid Unenforceable in Virginia Starting Jan. 1, 2023
As of Jan. 1, 2023, pay-if-paid clauses are unenforceable, regardless of whether a surety/payment bond claim is involved. This is only for […]
How Short is Too Short
A limitations period is too short when it’s unreasonably short.
Construction Contracting Without Relief Clauses During COVID-19
What to do if your contract lacks the parts to handle COVID-19? Considerations for creating new contracts during COVID-19.
Your Contract Can Handle COVID-19
Uncertainty and risk are not new or novel to contractors. Contracts reduce uncertainty and share the risk of doing or providing something. COVID-19 may have contributed to, but it has not single-handedly created, uncertainty and risk.
Contractors Can Use RFI to Notify the Government
The Board (and the government) should not elevate form over substance in evaluating the sufficiency of a contractor’s notice.
Taxes Due!
It’s tax season again, so it’s time to pay the piper.
Contractor Wins when Government Reconsiders Accord
Ever had buyer’s remorse or second-guessed a decision? When the U.S. Army Corps of Engineers did that, a Contractor won its claim […]
