A recent decision by the Court of Federal Claims, AAB Joint Venture v. United States, (January 26, 2007), illustrates some of the subtleties of the Contract Disputes Act of 1978. The contractor was awarded a design-build contract for a military storage complex. The government provided a geotechnical report in the solicitation for the contractor’s use in preparing its proposal and subsequent design. The contractor discovered, during construction, that the actual subsurface conditions differed materially from those represented in the government’s geotechnical report. Specifically, the report stated that the material was “limy dolomite rock, mostly massive and hard.” However, the contractor discovered that there was less hard rock and more expansive, clayey material. The latter material adversely affected the contractor’s plan to use shorter piles and spread footings for the building foundations.
The contractor submitted a certified claim to the contracting officer for the impact of the differing site conditions on the length of piles required for the perimeter of the structures, contending that the softer material required longer pile lengths. When the government failed to issue a contracting officer’s decision, the contractor appealed to the Court of Federal Claims on the basis of a deemed denial of its claim.
In its complaint, the contractor included a claim for the removal of unsuitable subsurface material in the footprint of the structures and requested a $412,000 equitable adjustment. The government objected to that part of the claim, arguing that the claim had not been presented to the contracting officer and, consequently, had not been certified. The government sought dismissal of the unsuitable material claim because the Court lacks jurisdiction to hear a claim that has not been presented to the contracting officer and certified.
Although the contractor argued that the unsuitable material claim stemmed from the same operative facts as the pile claim, namely the defective geotechnical report, the Court determined otherwise. The court noted that the certified pile length claim did not include any mention of the replacement of unsuitable material under the structures nor any estimate of the amount of the associated costs. In its decision dismissing the unsuitable material claim, the Court stated that “the contractor must submit in writing to the contracting officer a clear and unequivocal statement that gives the contracting officer adequate notice of the basis and amount of the claim,” noting that the purpose of a certified claim is to “push contractors to be precise in the claim that they submit to the contracting officer.”
However, all is not lost. The contractor still has the opportunity to present a certified claim to the contracting officer for the unsuitable material under the structures and to appeal any adverse decision.