A Denver contractor will not have to pay the U.S. Army Corps of Engineers savings from the use of an alternative construction method on a Texas bridge project, even though the agency did not formally approve the deviation from the contract specification.
In a Dec. 19 decision, the Armed Services Board of Contract Appeals ruled the Corps was aware that American West Construction LLC was using an alternative means to access a construction site as part of a $2.6-million project for two bridges across irrigation canals in El Paso County, Texas, in 2015.
The Corps contract specified erection of temporary bridges over another canal and drainage ditch to reach one of the construction sites. Instead, American West and a subcontractor paid the county Water Improvement District $13,200 for a site-access permit to use an existing levee, which they deemed safer and more efficient.
According to evidence and testimony, American West shared its plan with Corps project representatives, who did not explicitly object to the strategy. American West received full payment for the project, which was substantially complete in May 2016, including the cost of the unbuilt temporary bridges.
The Corps subsequently sought from American West an approximately $40,000 credit for use of the levee access route. The contractor appealed to the appeals board in April 2017.
Board Administrative Judge J. Reid Prouty wrote that, while the Corps could insist upon contract compliance with regard to the temporary bridges, it waived that right by giving American West “good cause to believe that the government was satisfied with its plans to forego the temporary bridges.”
The Corps issued progress payments, “without objection, for the line item regarding the levee license agreement,” Prouty further noted. American West’s attorneys did not respond to a request for comment. The Corps has until early April to appeal the decision to the U.S. Circuit Court of Appeals.