Hard Hat Case Notes

AuthorBy Hugh D. Brown and Lauren P. McLaughlin
THE CONSTRUCTION LAWYER 41Volume 42 Issue 1 2022
Published in
The Construction Lawyer
, Volume 41, Number 4. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Contractor Unable to
Prove Entitlement Despite
Ambiguous Specif‌ications
In federal government con-
tracting, contractors often face
uphill battles in the pursuit of
claims for increased costs dur-
ing construction. As an initial
hurdle, the procedural timeline
is fraught with delays and is
costly. A contractor must rst
submit its claims to its contract-
ing ofcer for disposition and
then—if the claim is denied—
resort to appeal through either
the applicable Board of Con-
tract Appeals or the Court of
Federal Claims for a lengthy
trial process. Additionally, suc-
cessfully proving legal theories against the government
is usually a very high bar.
The recent case of Appeal of CBRE Heery, Inc.
involved a design-build contractor that nished a proj-
ect late and was assessed over $1 million in liquidated
damages. While the design-builder was able to demon-
strate that there were ambiguities in the specications,
it was unable to show that this was sufcient for relief
from the assessed liquidated damages and for its own
increased costs.
The Army Corps of Engineers (Corps) hired CRBE
Heery, Inc. (Heery) to design and build a replacement
medical clinic at Seymour Johnson Air Force Base in
North Carolina. The contract contained a clause indi-
cating that Heery was responsible for the professional
quality, technical accuracy, and coordination of all proj-
ect designs. The contract further limited any liability by
the Corps for the design by cautioning that the Corps’s
review, approval, or acceptance of Heery’s work would
not operate as a waiver of the Corps’s rights; moreover,
the Corps’s rights were not impacted via payments for
any part of the project. Additionally, the contract’s order
of precedence clause stated that the codes, criteria, and
standards took precedence over both the Program for
Design (PFD) and the drawings.
During the project, an issue arose over whether one
of the rooms in the facility (Room 1919) was considered
a vault or a cage. The disposition of this was signicant,
as the requirements for doors and walls differed depend-
ing on whether a room was a cage or a vault, with a vault
having more rigorous criteria. The PFD was inconsis-
tent with regard to its description of Room 1919. On
the one hand, the PFD indicated the department where
the room was located would include a “Secure Storage
Vault.” On the other hand, the PFD indicated a “cage”
code for Room 1919. The PFD was also unclear as to
whether Room 1919 would store controlled substances
(which, if so, meant the room was a vault).
Likewise, the RFP’s drawings were also inconsistent
with the description of Room 1919. While the draw-
ings labeled Room 1919 as a “Secure Storage Vault,” the
room’s drawing consisted of dashed lines, indicative of
a cage (while a vault would be indicated by solid-line
walls). Heery’s technical proposal included a drawing
that showed a “Secure Storage Vault” but with dashed-
line walls (appropriate for a cage).
Before starting construction work, the Corps and
Heery held a 10-day design meeting to conrm the design
requirements. The government’s representative claried
that Room 1919 was for the storage of narcotics, which
required compliance with the Controlled Substances
Vault Standards. This led to an improved, but not per-
fect, clarication of the design. The parties replaced
Room 1919’s dashed-line walls with solid-line walls on
the drawings, depicting a vault. However, the drawings
continued to refer to the room as a cage. At the end of
the meeting, the Corps sent the contractor a PDF list-
ing all the agreed changes, including that Room 1919 was
given a code for vaults. Heery’s 35 percent and 65 percent
design drawings labeled Room 1919 as a “Secure Vault,”
assigned the correct code of SSV01, and used solid-line
walls. These changes were preserved in the nal design
that was approved by the Corps. Unfortunately, the com-
ponent door and wall drawings were still based on the
room being a cage, and not a vault.
Construction commenced and Heery installed the door
and walls in accordance with the component drawings.
The Corps’s initial inspection did not identify any con
cerns; however, the Corps later determined that the door
and walls were noncompliant. Under protest, Heery com-
plied with the Corps’s order to build the door and walls
to the vault standards and led a claim for its increased
cost and time. After the contracting ofcer denied the
claim, Heery appealed to the Armed Services Board of
Contract Appeals (Board), arguing among other things
that the Corps had constructively changed the contract
documents by adding more work.
While the Board agreed with Heery that the RFP
design documents were ambiguous as to whether Room
1919 was a vault or a cage, it concluded that Heery had
failed to prove that there was a constructive change. The
contract clearly specied the requirements for vaults used
for the storage of controlled substances and that those
vaults needed to comply with Unied Facilities Criteria
(UFC) 4-510-01, which in turn mandated compliance with
the Controlled Substances Vault Standards. The Board
was inuenced by its reading of the design requirements
Hugh D. Brown
Lauren P. McLaughlin
By Hugh D. Brown and Lauren P. McLaughlin

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