Government Contracting Database

This clause places the obligation to inspect the work on the contractor to ensure that it conforms to the contract requirements. This is known as the quality control system. The government may inspect at any reasonable time before acceptance to ensure compliance with the contract. However, the presence of a government representative does not permit or relieve the contractor of the responsibility to comply with the contract.

One other obligation placed on the contractor by this clause is that the contractor must replace or correct nonconforming work at its own expense. If the contractor fails to do this, the government may take corrective action and charge the contractor for the costs, or terminate the contract for default.

The other important feature of this clause concerns acceptance. The government should accept the work as promptly as possible and that acceptance is deemed to be final and conclusive unless the government proves that the work contains latent defects, was fraudulently performed, or that the work contains gross mistakes which amount to fraud. Under those circumstances, acceptance has not occurred, and the contractor must correct or replace the items.

It is well established that government inspectors are provided for the government’s benefit and not the contractor’s. Where the contract places on the contractor the burden of compliance, the presence or absence of a government inspector does not shift responsibility for the sufficiency of the work from Appellant to the government. Appeal of George Ledford Const., Inc., ENGBCA No. 6218, 97-2 B.C.A. (CCH) ¶ 29172 (citing Panhandle Grading & Paving Inc., ASBCA No.38,539, 90-1 BCA 22,561; R.S. Construction, ASBCA No. 22,815, 80-1 BCA 14,369; W.L. Spruill and Company, ASBCA No. 14,390, 71-2 BCA 8930).

Accordingly, even if the government’s verification inspections were negligently conducted, Appellant cannot cite the government’s inspection and verification efforts as excusing its own responsibility to perform adequate and required inspections and tests and to furnish an acceptable product. Appeal of George Ledford Const., Inc., ENGBCA No. 6218, 97-2 B.C.A. (CCH) ¶ 29172 (citing Opto Mechanik, ASBCA No. 30,690, 90-3 BCA 23,165; DeLaval Turbine, Inc., ASBCA No. 21,797, 78-2 BCA 13,521 at 66,258.

Failure of the government to correct a contractor’s improper performance does not legally excuse the contractor from its obligation to meet the contract requirements. In Re Ellis-Don Const., Inc., ASBCA No. 51210, 99-1 B.C.A. (CCH) ¶ 30346 (citing Shirley Contracting Corporation, ASBCA No. 29,028, 87-1 BCA 19,389. The mere fact that government representatives were present during performance, observing the work being performed, and not objecting to non-conforming work, is insufficient to constitute a waiver of the government’s right to later insist on compliance with the contract. Masterclean. Inc., VABCA No. 3818, 96-2 BCA 28,298; J.W. Bateson Co., Inc., VABCA Nos. 1821, 1860, 85-3 BCA 18,206. In fact, in this case, the failure of the asphalt to meet the density and thickness requirements of the plans and specifications could not be readily ascertained by government inspectors making only visual inspections. See Appeal of George Ledford Const., Inc., ENGBCA No. 6218, 97-2 B.C.A. (CCH) ¶ 29172

Updated: June 28, 2018