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Autonomy Under Design-build In Govt. Context Is Pretty Limited

Wednesday, February 01, 2012 03:29 am


Design-Build -- Differing Site Conditions

Metcalf Construction Co., Inc. v. U.S., 2011 Ct. Fed. Cl. No. 07-777C (Dec. 9, 2011)

A contractor failed "to appreciate the difference between the contractor's ability to make changes in the private design-build context and the contractual constraints necessarily required in government contract work." That led to significant delay that couldn't be pinned on the government.

During its work as a general contractor on a U.S. Department of the Navy (Navy) design-build housing project in Hawaii, Metcalf Construction Co., Inc. (Metcalf) encountered several instances of the Navy's alleged "maladministration and misconduct". It claimed project delays were the Navy's fault. But these "interferences" were simply the result of the Navy insisting that Metcalf adhere to contractual requirements, which the government was within its contractual rights to do.

Metcalf alleged breach of contract and of good faith and fair dealing based on numerous actions of misconduct on the Navy's part. For instance, in addition to claims of administrative misconduct (such as arbitrarily rejecting submittals and inconsistently administering payment), Metcalf claimed that the Navy: required the contractor to use "Primavera SureTrack" scheduling software; failed to timely investigate a differing site condition regarding "expansive soils"; issued conflicting remediation directives regarding a second site condition involving chlordane contamination; and interfered with the contractor's design revisions.

As to the first point, [...]

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