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Defective Cofferdam Design Excused Project Delays

The default termination of a marina construction contract was improper, according to the Court of Federal Claims, because the government's defective design specifications and contract modifications excused the contractor's failure to meet the contract completion date. The contract required the contractor to build a cofferdam so that it could excavate the marina under dry conditions, but after placing the underwater fill required by the specifications, the contractor could not reduce the water level sufficiently. After several design alterations, the contractor constructed a working cofferdam using uncleaned field stone, but the parties disputed whether the structure was stable and safe, and each hired experts to assess the work. In the meantime, there were numerous delays, and the contracting officer terminated the contract for default based on the contractor's failure to meet the contract completion date.

Extensions Required

On appeal, the court found the contractor was entitled to time extensions under the contract's default clause ( FAR 52.249-10) and the decision to terminate was improper. To receive an extension under FAR 52.249-10, the contractor must show the delay was excusable and unforeseeable, and that the excusable event delayed activities along the critical path. Here, the evidence was overwhelming that the cofferdam design suffered from a critical defect, which significantly impeded the work. The contractor fully complied with the specification for the underwater fill, but the fill was a porous gravel material. According to the contractor's expert, the government's design for the fill grossly underestimated the amount of water that would flow through the cofferdam, the government compounded the problem by deleting steel sheetpiling from the cofferdam design, and the cofferdam design frustrated the entire construction sequence by not allowing for successful dewatering. Two contract modifications that changed the work but did not allow additional time for performance were additional sources of excusable delay. The excusable delays along the critical path, coupled with winter weather delays, pushed the fall contract completion date well into the following spring. Since the defective design and subsequent modifications were the controlling cause of the delays, the termination for default was converted to a termination for convenience. ( Martin Construction, Inc. v. U.S., FedCl, 56 CCF 79,707)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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