Government Contracts Government Knowingly Provided Defective Specifications
Tuesday, February 12, 2019

Government Knowingly Provided Defective Specifications

By Government Contracts Editorial Staff

The contractor was entitled to summary judgment on a defective specifications claim, according to the Court of Federal Claims, because it was undisputed the government knowingly provided defective survey data and failed to correct the error in a timely manner. The dispute arose from a contract to rehabilitate, renovate, and perform new construction on an existing levee on the Rio Grande River. Prior to issuance of the solicitation, the contractor that designed the drawings and plans for the project advised the government that some of the “original centerline [right-of-way] monuments” were missing and had been “removed or destroyed.” Further, boundary retracement was not completed by the time of contract award.

Delays. After starting performance, the levee improvement contractor discovered problems and inconsistencies in the contract survey data. The government initially forwarded the contractor’s requests for information to the design contractor, but the government eventually gave the contractor authority to determine a solution without waiting for the design contractor. The contractor alleged the government’s actions caused progress on the project to be delayed.

Facts Undisputed. The court granted the contractor’s motion for summary judgment as to liability. The undisputed facts showed the survey data was defective, the government knew the data was inaccurate even before it issued the solicitation, and a number of the inaccuracies resulted from actions taken by the government’s work crews during an earlier project. In addition, when the contractor identified the defects after it began performance, the government deliberately withheld more accurate survey data. Finally, it was undisputed that the government’s initial process for resolving survey discrepancies was ineffective. (Ultimate Concrete, LLC v. U.S., FedCl, 63 CCF ¶81,565).

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