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Contractor Can Change Its Legal Theories When Appealing A Final C.O. Decision But Can't Change Its C

Monday, June 04, 2007 12:21 pm

Contractor Can Change Its Legal Theories When Appealing A Final C.O. Decision But Can't Change Its Claims' Factual Foundation

The United States Court of Federal Claims granted the federal government's motion to dismiss a contractor's defective specifications claim, but let the contractor's breach of contract, constructive change and economic waste claims go forward.

M.A. DeAtley Construction, Inc. (DeAtley) contracted with the Federal Highway Administration (FHA) to reconstruct a portion of the Flowery Trail Road in Washington. The contract required that DeAtley crush rock and then lay the aggregate as the road's foundation. The contract required that the aggregate meet certain standards and designated a source DeAtley could use for aggregate production.

Relying on the FHA's assurances that the designated aggregate source complied with contract specs, DeAtley used it and completed the rock crushing during the fall of 2001. The contractor stored the aggregate according to industry standards and in August 2002 began laying the aggregate.

While laying the aggregate, DeAtley discovered that the crushed rock had degraded to such an ext [...]

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