Better Roads Digital Magazine
Issue link: http://read.dmtmag.com/i/206514
design to shorter timber piles with helical anchors and deep concrete footings. After construction was completed, Optimum submitted a request for equitable adjustment (claim) for $2.3 million and a five-month time extension. The Corps rejected the claim. Optimum appealed. On appeal, Optimum argued the specifications were defective based on the Spearin doctrine because they required the use of timber piles, and they required piles more than 100 feet in length, which required a four-month lead time for ordering that would consume the entire contract time (116 days) to complete the base item contract. The Corps argued that regardless of merit, Optimum did not properly raise this argument in its claim. Instead, Optimum raised the argument of defective specifications for the first time on appeal. The Board reviewed Optimum's claim and the CO's decision. The Board found Optimum's claim was based on whether a differing site condition existed, whether the Corps delayed returning submittals and whether Optimum was responsible for concurrent delays even if the Corps delayed in returning submittals. The key facts underlying Optimum's claim to the CO were based on subsurface conditions and the submittal review process. In contrast, Optimum's timber pile claim was based on whether timber was suitable for anchoring the weirs and the availability of lengthy timber piles. Because Optimum raised its timber pile claim on appeal, and because the claim was based on different facts than Optimum's claim to the CO, the Board determined they lacked jurisdiction and denied the appeal. The Optimum matter illustrates the importance of including all bases for relief in a claim to the government. The failure to do so can be fatal. Here, Optimum's appeal was denied because it failed to properly raise the issue of defective timber pile specifications in its claim to the CO. The Board did not dispute, or even address, the potential validity of Optimum's claim. Instead, because the issue was not properly presented, Optimum's appeal for $2.3 million was denied. For an archive of "In Court" articles, which includes web-exclusive columns, visit BetterRoads.com Better Roads November 2013 5