LAW: THE CONTRACTOR'S SIDE: Trying to weasel out

Aug. 9, 2013


Drennon Constr. & Consulting, Inc. v. Dept. of Interior, 13-1 BCA ¶35,213, CBCA 2391, 2013 WL 996042 (Civilian B.C.A) involved a contract with the Department of the Interior’s Bureau of Land Management (BLM) for widening of a campground road in Alaska. The road ran between a river on one side and a hill on the other. The drawings called for the contractor to excavate into the hillside and build a gabion wall of varying heights up to approximately 9 ft to retain the cut slope. Although the project was fully designed by the BLM, the plans required the contractor to design the wall. The contractor also was charged with checking the existing topography of the site to ensure the elevations on the drawings were accurate.

The geotechnical report accompanying the bid documents represented that the soil in the hill contained rock and a mixture of medium to dense soil containing fines in the range of 5.1% to 10.7%. It also noted that the hillside was near its natural angle of repose of between 32° and 38°. The report concluded that the excavation should be conducted in short sections, which should be able to maintain slopes of between 45° and 50° for short periods of time.  

When the contractor conducted its survey, it determined that the road could not be built as designed because the river was closer to the existing road than represented on the drawings and it was impermissible to place fill in the river. Thus, the BLM agreed that the road had to be shifted toward the hillside. This required significantly more excavation of the hill than anticipated and also significantly increased the height of the gabion wall.

As the contractor began excavating the hillside, it encountered landslides. The engineer concluded that the contractor had failed to follow the advice in the geotechnical report of excavating in short sections. After several additional attempts at excavation, the contractor ceased all work on the project, and the contracting officer issued a stop-work order and asked the contractor to price three alternative approaches. When BLM determined that all pricing was too high, it terminated the contract.

The contractor submitted a claim seeking payment for unused gabion it had produced and for idle equipment during the work stoppage.

The contractor contended that the design was defective thereby leading to deeper excavation on the hillside and that it encountered differing site conditions when soil samples showed the soil contained less than 1% fines and thus had no cohesive capacity. 

BLM argued that the cause of the problems was the contractor’s failure to perform excavation in short sections and also noted that the contractor’s design of the gabion wall was faulty.

The board sided with the contractor and found that although its technique for excavating the hillside may not have been ideal, the hillside would have collapsed no matter what technique the contractor had used. It similarly held that the contractor’s design for the wall was irrelevant since the project was truncated before the wall was ever built.

Significant to the board’s decision was evidence introduced during the hearing that during design development, the private engineer BLM hired to design the project determined that the topography model it received from the BLM was inaccurate.

When the BLM denied the engineer’s request due to budget restraints, the engineer then proposed that “weasel words” be placed in the solicitation to warn bidders of possible inaccuracies in the model. This was done to avoid additional costs resulting from whatever inaccuracies might exist. This, in turn, also led to the addition in the solicitation of the requirement for the contractor to perform a survey before doing other work at the site.

This turned out to be quite embarrassing to the engineer and the BLM. R&B