Construction Law

Government Held Responsible for "Utter Silence"

By Michael Payne

An Armed Services Board case, ADT Construction Group, Inc., involves an appeal from a contracting officer's final decision denying a claim for $826,725.16 and a 278-day time extension. The contractor had filed a claim for pre-construction delays arising out of a contract for the design and construction of a munitions maintenance facility at Nellis Air Force Base, Nevada. Although the contract in question was ultimately terminated for default and appealed to the Board (ASBCA No. 55358), the termination appeal was suspended pending the outcome of the appeal on the underlying delay claim. The Board obviously concluded that the merits of the underlying delay claim could have an effect on the merits of the termination for default.

Although the Board found that some of the delay was the fault and responsibility of the Government, we were particularly interested in the Board's conclusion about the contractor's right to pursue "fast track." After drafting the solicitation the government learned that the Department of Defense Explosives Safety Board ("DDESB") required 100% design of the entire project before it would review the plans. Thus, the drafters sought to modify the solicitation to remove all references to fast track as an option. The Board found that they "failed miserably at that task" and several references to fast track as an option remained in the solicitation when it was issued. ADT stated in its proposal that it would use the fast track method for design and construction.

The Board concluded that to the extent the contract was ambiguous in that regard, the contractor repeatedly gave notice when it said it wanted to do fast track and the government repeatedly ignored that notice. The evidence shows that the government never intended to allow fast track, and indeed its actions supported that intention, yet it failed to communicate those intentions to ADT. The government's utter silence when the contractor repeatedly raised the issue of fast track squarely put the burden on the government to respond during the design phase - and it did not. Therefore, the Board found that the contractor had a contract right to pursue fast track.

Full post as published by Federal Construction Contracting Blog on August 03, 2009 (boomark / email).