The Armed Services Board of Contract Appeals (the “Board”) recently held the government liable for design delays where the government prematurely required details in design submissions and failed to provide comments on design submissions within the 14-day period allotted for government comments in the contract.

In Appeal of RBC Construction Corp., the contract contemplated the use of fast track design methods. The Board explained that the purpose of a fast track submittal is to advance some specific work while the normal construction process continues concurrently. The Board also explained that the government usually gives itself a 30-day review period for submittals requiring government approval and a 21-day period for government conformance review of other submittals. Under this contract, however, the government had 14 days to review each of the contractor’s design submittals.

The contractor’s site and foundation package was a fast track package that was independent of the final design packages for the project. The site and foundation package showed an underground fire-suppression water cistern under the foundations of one of the buildings. In its comments to the submission, the government, concerned that the foundation would have to be torn-out later if the cistern was incorrectly sized, required the contractor to provide detailed calculations for the cistern. After the contractor’s resubmission of the site and foundation package, the government commented that the contractor did not provide enough details regarding the cistern. The government made these comments twenty-five days after the contractor’s submittal of the package and thus eleven days outside the 14-day review period.

The Board recognized that while the government’s actions in requiring the cistern calculations may have been well intentioned to protect the contractor from having to modify the foundation later, the contract did not require the contractor to submit the cistern calculations as part of the its site and foundation submission, and that the government’s delay in approving the site and foundation package until the cistern was approved delayed the contractor’s site and foundation work.

The Board found delay associated with the government’s requirement for the cistern calculations, but did not grant the contractor compensable delay for the entire period from design submission until approval because the cistern was not the only issue with the design raised by the government. The other design issues were not resolved until June 1, 2012; thus, the Board held that government delays related to the cistern prior to June 1, 2012, were concurrent with delays that were the contractor’s responsibility. The Board also found that the government was responsible for the eleven days beyond the 14-day review period it took to return comments on the site and foundation submittal.

The takeaways from this decision are (a) review in a fast track delivery model should be expedited to preserve the utility of the model and (b) the government can be held liable for delays arising from government changes to the design process, and when faced with such delay, the contractor should promptly address comments on other issues to avoid a finding of concurrent delay.

This article, "Government Held Accountable for Delays to Fast-Track Design Process" was published in the Bradley Construction and Procurement Law Newsletter for the third quarter of 2020.