Unreasonable Rejection

The Boards have found that the unreasonable rejection of a contractor submittal entitles the contractor to the impacts on other work not directly involved with the submittal, i.e., the “ripple” effect on contract performance. Piracci Construction Company, Inc., GSBCA No. 3477, 74-2 BCA ¶ 10799. One “ripple” effect which is recognized as recoverable is the increase in costs of performing during adverse weather conditions. Mega Const. Co. v. United States, 29 Fed. Cl. 396, 460 (1993); Merritt-Chapman & Scott Corp. v. U.S., 208 Ct.Cl. 639 (1973).

In the Appeal of Baltimore Contractors, Inc., ASBCA No. 14819, 72-2 BCA ¶ 9554, the Armed Services Board found the government liable for the increased costs caused by “… the chilling effect the cold has on efficiency …” when changed work was performed in the winter months rather than an earlier warmer period. The Corps of Engineers Board has also recognized the impacts associated with changes delaying work into adverse weather. In Dworshak Dam Constructors, a contractor was entitled to recover the costs of installing concrete insulation because a government-directed change delayed performance of the concrete work, thus extending that portion of the work into the period specified in the contract for insulation. Dworshak Dam Constructors, ENGBCA No. 3240, 73-2 BCA ¶ 10,039. Another decision has affirmed the government’s responsibility for this type of impact cost even where the work is not changed, only delayed by government action. Middlesex Contractors and Riggers, Inc., 96 Interior Dec. 31, 89-1 BCA ¶ 21,557. In Middlesex, a contractor was entitled to recover additional costs resulting from bad weather because the government delay in issuing notice to proceed caused the contractor to miss a period of favorable weather when the work was intended to have been performed.

Updated: August 8, 2018