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Tread Carefully When Contract Specs Call For What's 'typical'

Saturday, October 04, 2008 03:55 pm

Tread Carefully When Contract Specs Call For What's 'typical'

Experience in your trade only gets you so far in arguments over proper work if you haven't read specs and drawings carefully, for it's the black-and-white contents of these documents that take precedence.

After work had begun on a $2.3 million project to repair a roof at the Naval Operating Base in Norfolk, Virginia, the contract parties met several times to discuss contractor States Roofing Corporation's (SRC) cost proposals for outstanding work items. Many cost adjustment claims were resolved before and after SCR filed a timely appeal with the Board. However, a dispute over whether parapet walls were to be painted or covered with a threeply waterproofing membrane flashing material survived to trial. The question of the correct waterproofing method came down to a reading of contract language - and who's interpretation was reasonable.

The burden fell on SRC to show that either its contract interpretation was the only reasonable one or that the contract was ambiguous. More specifically, the contractor was obliged to demonstrate not that there were two different interpretations but that both were in the "zone of reasonableness." Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999) [...]

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