125 Fed. Cl. 469
Fed. Cl.2016Background
- NTS (Nova Group/Tutor-Saliba), a joint venture, contracted with NAVFAC to design and build Pier B at Puget Sound Navy Shipyard with a 1,345-day completion term and liquidated damages for delay.
- KPFF, NTS’s Designer of Record, used ACI 318-05 §10.13.6(a) to analyze global stability; NAVFAC reviewed and approved design submittals and provided 382 review comments none addressing global stability or KPFF’s chosen method.
- On March 8, 2010 NAVFAC transmitted a BergerABAM memorandum questioning the design’s global stability approach, prompting NTS to stop critical Pier B work and re-evaluate the government‑approved design.
- During March–May 2010, NTS and KPFF furnished reports, met with the Government, and retained an independent designer who validated KPFF’s method; on May 27, 2010 NAVFAC concluded the design was technically sufficient and NTS resumed work.
- NTS alleges the Government’s March 8 action constructively changed the contract, causing a work stoppage and later acceleration (with added manpower, equipment, and overtime), and seeks damages for increased costs; NAVFAC denied the claim citing failure to provide written notice within 20 days as required by FAR 52.243-4.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to give written notice within FAR 52.243-4’s 20-day period bars NTS’s constructive change claim | NTS: Government had actual knowledge of the stoppage and acceleration, so the 20-day notice requirement should not preclude the claim | Gov: Strict enforcement of FAR 52.243-4 requires dismissal for lack of timely written notice; K‑Con compels dismissal | Court denied dismissal: plausible allegations that Government had actual notice create an exception to strict 20‑day notice enforcement |
Key Cases Cited
- Aydin Corp. v. Widnall, 61 F.3d 1571 (Fed. Cir. 1995) (Government liable for costs from a constructive change)
- Bell/Heery v. United States, 739 F.3d 1324 (Fed. Cir. 2014) (elements of a constructive change claim)
- K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000 (Fed. Cir. 2015) (20-day notice requirement; recognized exception for government actual/imputed notice)
- Singer Co. Librascope Div. v. United States, 568 F.2d 695 (Ct. Cl. 1977) (timely notice distinguishes compensable requests from contract-incorporated work)
- Calfon Constr. Inc. v. United States, 923 F.2d 872 (Fed. Cir. 1990) (contracting officials’ knowledge of operative facts can excuse strict notice compliance)