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Architect's Aesthetic Choices Were Compensable Changes

Claims for increased costs for precast concrete work were granted in part by the Civilian Board of Contract Appeals because the government's architect changed contract requirements. The construction contract required a combination of smooth and acid-etched finishes for precast concrete used as the facing for various structures. The contract specified the precast was to appear uniform when viewed at a three-meter distance, and it authorized the architect to reject panels for surface defects or non-uniformity and to adjust the color, which was not specified. The precast subcontractor's attempt to match the architect's sample resulted in a "long and torturous process" of sample submittal and review. The contractor sought the subcontractor's additional costs to provide precast facing that met the architect's demands.

Constructive Change

The board determined the architect's rejection of the subcontractor's original sample constructively changed contract requirements regarding the precast's mix. The sample was of uniform color when viewed at the prescribed distance, and there was no basis to reject the sample other than the architect's "evolving idea" of the desired color. The architect also changed the contract's finish requirements by selecting an acid-etched rather than a smooth finish for a garden wall. However, costs to supply an acid-etched finish to other structures for which the contract specified a smooth finish were denied because the subcontractor made this judgment on its own and therefore acted as a volunteer. (Walsh/Davis Joint Venture v. GSA, CBCA, 93,171)




(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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