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The Owner’s approval of a shop drawing submittal that deviates from specification requirements does not relieve the contractor where the contractor failed to notify the owner in writing of the variations from the specifications and obtain approval from the owner. The U.S. Navy issued specifications for the construction of a facility in Greece. One of the requirements specified details for the anchor bolts for the light pole foundations. The contractor gave an exterior lighting submittal to the Navy with an anchor bolt that did not conform to the specifications. The Navy approved the submittal and the contractor proceeded to construct the foundations for the light poles. It was only after this work was complete that the Navy discovered that the anchor bolts deviated from the specifications in diameter and were not galvanized.

The Navy notified the contractor that it must remove the foundations and install them per the specifications. In arguing that it would be entitled to a change order for time and costs to complete the replacement work, the contractor asserted that by approving the lighting submittal, the Navy had approved and accepted the anchor bolt design that was part of that submittal. In addition, it presented evidence that the pole manufacturer’s data showed that the anchor bolts submitted and installed by the contractor were satisfactory for the selected poles.

In rejecting the contractor’s arguments, the Armed Services Board of Contract Appeals ruled that a contractor is not relieved from the specifications by virtue of the government’s approval of the non-conforming submitted items, in the absence of a written notice by the contractor with the submittal, describing the specific variations from the specifications. Pursuant to the contract, there were specific requirements to be followed by a contractor seeking to obtain review and approval of any deviation or variation from the contract design specifications. Since it had given no written notice of the deviations, the contractor was not relieved from contract compliance, and the Navy was entitled, therefore, to require the contractor to tear out the work and re-perform it at no cost to the government. Elter S.A., ASBCA 52327 (2001).

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 4, No. 3 (Mar 2002).

Copyright 2001, ConstructionRIsk.com, LLC