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No Immunity from Katrina Claims for Construction Contractor

The Court of Appeals for the Fifth Circuit reversed a district court's grant of summary judgment, and remanded negligence claims, because specifications for backfill and compaction work were not reasonably precise and the contractor was not entitled to government contractor immunity. The plaintiffs contended the contractor's backfilling and compaction work under a task order to remediate waste sites violated a state law standard of care and allowed underseepage that was a cause of levee failure and flooding in New Orleans in the wake of Hurricane Katrina. In granting summary judgment for the contractor, the district court concluded the contractor had satisfied the Supreme Court's three-part test for GCI established in Boyle v. United Technologies Corp. (34 CCF 75,489).

Exercise of Discretion

The Fifth Circuit, however, found the first part of the Boyle test --government approval of reasonably precise specifications --had not been satisfied. To meet the test, the specifications had to address the design features alleged to be defective, which in this case were the choice of backfill material and method of compaction. For choice of backfill, the specifications mandated use of on-site material as the primary source, permitted off-site material to be imported as necessary, and required the material to be clean, not contaminated, and not full of debris. The evidence indicated the government's sole consideration in evaluating backfill material was cost, and it did not mandate the backfill's composition or establish procedures to test material for suitability as backfill. Since the government provided imprecise and even nonexistent specifications, the contractor was not entitled to claim GCI for its exercise of discretion in choosing the composition of the backfill. As for compaction, the specifications indicated the location and height of the backfill, provided material was to be "placed in lifts and compacted," and directed compaction to occur "with previous excavated soil in 2' lifts." The specifications did not indicate the type of equipment to be used or provide compaction standards. Rather, the government "unequivocally emphasized its lack of interest in mandating specifications for compaction density by stating that 'no compaction testing will be required.'" By providing only general instructions, the government ensured the contractor would have significant discretion over the method of compaction, and the contractor's exercise of that discretion was not protected by the GCI doctrine. (In re Katrina Canal Breaches Litigation, CA-5, 54 CCF 79,423)




(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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