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Contracting Officer's Representative Cannot Bind Agency

Writer's picture: R.D. Lieberman,ConsultantR.D. Lieberman,Consultant

In a construction case, the Civilian Board of Contract Appeals (“CBCA”) reminds us that specifications take precedence over drawings and that a Contracting Officer’s Representative (“COR”) has no authority to change the contract, including making a modification of the specifications. Framaco Int’l, Inc., CBCA 7573, July 25, 2024.

Framaco was awarded a firm-fixed price contract from the Department of State to construct an embassy compound in Port Moresby, Papua, New Guinea.  The contract included Federal Acquisition Regulation (“FAR”) 52.236-21, Specifications and Drawings.  This provision included the like effect clause (“anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both”).  The clause also states that if there is a difference between the drawings and specifications, the specifications shall govern.


The contract specifications concerning “fire rated” panels was at issue.  During its installation of materials, Framaco asked the State Department’s COR (who was also the Project Director) if certain rooms needed to be “fire rated” since there were no plywood backing panels for equipment in those rooms. The COR advised that the plywood [in such rooms] need not be fire rated unless it was specifically called out as fire rated.  Framaco used non-fire rated plywood on the project, but the State Department determined subsequently that the installed non-fire rated plywood was not compliant with the contract requirements.  Framaco eventually installed fire-rated plywood, but filed a claim for $99,999 to compensate what it alleged was a government-directed change to install the plywood.


The CBCA denied the appeal based on the contract language, noting that non-fire-retardant treated wood was not among the materials permitted for construction of the type of building at issue here.  To the extent there was a discrepancy between drawings and specifications, the CBCA noted that it was clear that specifications took precedence over the drawings.  And finally, the CBCA rejected Framaco’s argument concerning its communication with the COR about the need for fire rated wood.  The CBCA noted that the COR had no authority to change the contract, including modifying the specifications—only contracting officers have such authority to execute modifications on behalf  of the government.  The CBCA denied the claim in its entirety.


Takeaway.  Never accept a contract interpretation from a COR unless that interpretation has been concurred in, in writing, by the CO.  Use email to force the CO to take a position before you rely on the COR’s interpretation.

 

 For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes.

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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