Payne Hackenbracht & Sullivan

Government Insistence on Higher Standard of Performance

The government is entitled to insist on strict compliance with the specifications in the performance of a contract. However, the government cannot insist on performance to a higher standard, or on the use of higher quality material, without providing the contractor with additional compensation. The boards of contract appeals have long held that "Where as a result of the Government's misinterpretation of contract provision[s] a contractor is required to perform more or different work, or to higher standards, not called for under its terms, the contractor is entitled to equitable adjustment..." Allstate Leisure Products, Inc., ASBCA 35,619, 89-3 BCA 22,008, citing Emerson-Sack-Warner Corp., ASBCA No. 6004, 61-2 BCA 3248.

In a situation where the government insisted on a contractor supplying masonry blocks which exactly matched existing, the board found that the contract only required a reasonable match and held that the contractor was entitled to its extra costs incurred to perform to the higher standard. Sierra Blanca, Inc., ASBCA 32161, 90-2 BCA 22,846 (1990). In a contract for the construction of a stone breakwater, the government insisted on the contractor supplying 15 to 30 ton stones without joints, cracks or chunks, where the specifications only required that the stones be "sound." The board, in finding that the contractor was entitled to additional compensation, stated,

For the Government to insist upon a 15 to 30 ton rock with no cracks requires more than reliance on the criterion "sound" in the specification. The Government seems to interpret the word "sound" as meaning perfect, which is not even giving meaning to the normal general definition of the term. The term "sound" must be interpreted in its accepted manner with normal industry tolerances allowed. E. W. Eldridge, Inc., Eng BCA 5269, 89-3 BCA 21,899.

Overly strict inspection by the Government which requires performance to a higher standard than required by the contract also entitles the Contractor to recover its extra costs for such performance. Hull-Hazard, Inc., ASBCA 34645, 90-3 BCA 23,173; Stanley W. Wasco, ASBCA 12288, 68-1 BCA 6986. It is improper for the Government to change a reasonable interpretation of the specifications by its inspection methods and to enforce a new and higher standard without alerting prospective bidders in the contract documents. Randall H. Sharpe, ASBCA 22800, 79-1 BCA 13,869.

However, if a contractor substitutes material of superior quality to the specifications, or performs to a superior level of workmanship, it cannot anticipate additional compensation absent some directive from the government. In addition, a contractor runs the risk that the government will not accept the substitution, even though it exceeds the contract requirements, and will require replacement with materials which comply with the specifications.