American West Construction, LLC, ASBCA No. 61094

Contract: MATOC Task Order D02 (design-build bridges), awarded to American West Construction on Sept 27, 2010; included FAR Changes clause and a contract requirement to install temporary bridges for site access.
American West sought and obtained a private easement from El Paso County Water Improvement District (the Water District) to use a levee for access, paying $13,200; subcontractor J.D. Abrams incurred ~$20,000 contingency costs for temporary bridges.
American West notified the Corps in multiple submissions and meetings in Fall 2015 that it planned to use the levee; the Corps reviewed plans, observed no temporary bridges were built, and approved progress payments that included the temporary-bridges line item.
Corps personnel raised the idea of a government credit for not building the bridges in early 2016, but there was no contemporaneous, explicit condition placed on the contractor’s use of the levee; daily reports and correspondence reflect awareness and later negotiations about a credit.
After project completion, the Corps issued a final decision demanding a $40,239.89 credit under the Changes clause for work not performed; American West appealed to the ASBCA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the Corps contractually entitled to require installation of temporary bridges and to claim a deductive change if they were not built?	Corps was entitled; contract required the bridges, so a credit under the Changes clause is proper.	Same: Corps asserts contractual right to strict compliance and to deductive change if contractor deviates.	Held for Corps on entitlement: contract required bridges and Changes clause could permit a credit absent waiver.
Did the Corps waive its right to require the bridges (and thus waive the right to a credit)?	American West argued Corps waived the requirement by repeatedly acquiescing, approving payments, and failing to timely object.	Corps argued any tolerance was conditional and it could later seek a credit (Norcoast-Beck Aleutian reliance).	Held for American West: Corps waived the requirement through conduct and acquiescence, so it surrendered the right to a deductive change.
Was any alleged waiver conditional such that the Corps could later invoke the Changes clause?	American West: no clear contemporaneous condition was communicated; contractor reasonably relied on waiver.	Corps: any allowance was conditional on payment/credit; later demand for credit permitted.	Held for American West: the conditional nature (if any) only arose after the requirement was effectively eliminated, so the Changes clause was inapplicable.

Rixon Electronics, Inc. v. United States, 536 F.2d 1345 (Ct. Cl. 1976) (government entitled to strict compliance with clear contract terms)
Gresham & Co. v. United States, 470 F.2d 542 (Ct. Cl. 1972) (contractual rights become "dead" where a party knowingly fails to exact performance over an extended period)
Miller Elevator Co. v. United States, 30 Fed. Cl. 662 (Fed. Cl. 1994) (discussing waiver and estoppel of government contract requirements)