Better Roads

January 2014

Better Roads Digital Magazine

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2011, the CO denied West Bay's claim. West Bay appealed to the Civilian Board of Contract Appeals (the board). In the board proceeding, the government brought a motion to dismiss West Bay's claim, arguing the "plain meaning" of the specifications was clear and unambiguous regarding the type of joints, how they were shown in the drawings, and the CO's right to approve (or disapprove) the relocation, addition or elimination of construction joints. The government disagreed that West Bay could decide on its own whether to eliminate construction joints because this would render meaningless the contract language requiring government approval for such changes. In response, West Bay argued the contract was ambiguous regarding the placement of joints. West Bay stated "control joints" did not require government approval for relocation, addition or elimination. West Bay noted the drawings did not reference "control joints," though they provided details for other joints, including contraction and expansion joints. West Bay's project manager noted the government allowed West Bay to omit construction joints in the slab-ongrade and elevated decks and argued the government was inconsistent in interpreting the contract. In its decision, the board stated as West Bay recognized in its RFI, the joints in question appear to have been required by the specifications. However, based upon the minimal record before the board, they could not determine whether the specifications could be interpreted differently from how they were interpreted by the government. Given the early stage of the proceedings, the board denied the government's motion. The West Bay Builders decision underscores how ambiguities in contract language can arise, including from documents incorporated into the contract and course of performance. If a contractor believes that contract language is ambiguous, they should request clarification prior to bid opening so it is clear what they are bidding on. Otherwise, a court or jury — who typically lack technical knowledge and understanding — may decide a critical issue of contract interpretation and the contractor's fate. In West Bay Builders, the board ruled in the contractor's favor regarding a potential ambiguity, thus keeping alive the contractor's claim for almost $1 million. Better Roads January 2014 21

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