Granite Construction Co. v. United States

37 Cont. Cas. Fed. 76,080, 22 Cl. Ct. 831, 1991 U.S. Claims LEXIS 135, 1991 WL 58497
CourtUnited States Court of Claims
DecidedApril 17, 1991
DocketNo. 398-89C
StatusPublished
Cited by1 cases

This text of 37 Cont. Cas. Fed. 76,080 (Granite Construction Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Granite Construction Co. v. United States, 37 Cont. Cas. Fed. 76,080, 22 Cl. Ct. 831, 1991 U.S. Claims LEXIS 135, 1991 WL 58497 (cc 1991).

Opinion

OPINION

LYDON, Senior Judge:

This Wunderlich Act review case is before the court on the parties’ cross-motions for summary judgment. The court must decide whether the Corps of Engineers Board of Contract Appeals (ENGBCA or Board) erred in finding that the contractor Granite Construction Company (Granite) was not entitled to recover damages claimed for removal and replacement of non-conforming materials on a concrete [832]*832lock and dam under construction. After consideration of the parties’ submissions and oral argument, heard on April 12,1991, the court grants defendant’s motion for summary judgment, for the following reasons.

FACTS

The facts as found by the Board are summarized below. On October 26, 1976, Granite Construction Company (Granite) entered into a contract with the U.S. Army Corps of Engineers (Corps) for construction of a lock and dam located near Aberdeen, Mississippi. The contract was worth approximately $36 million. The contract terms required construction of concrete monoliths to form the lock walls and dam. Each monolith is composed of several concrete “lifts” about five feet high. When completed, the monoliths are about sixty feet high, forty-two feet long, and thirty feet wide. Adjacent monoliths were to be separated by small gaps or joints.

The contract required polyvinylchloride (PVC) waterstop to be embedded in the vertical joints between monoliths. The parties’ dispute arises from the Corps’ rejection of the waterstop, after about ten percent of it had been embedded in concrete, when it was discovered that the waterstop failed to meet contract specifications. The PVC waterstop Granite used for this project came in fifty-foot rolls. The water-stop is nine inches wide with a center bulb % inch thick. Ribbed flanges on either side of the waterstop are embedded in the concrete, with the center bulb in the joint. The flanges are % inch thick, with lengthwise ribs. The vertical waterstop is installed about eighteen inches inside the face of the monolith. The waterstop is keyed into the ground at the foundation, and it runs vertically almost to the top of the monolith. The purpose of the water-stop is to prevent water from leaking through the joints of the lock and dam.1

About half (four inches) of the waterstop is placed in the wet concrete during construction of the monolith. As the concrete hardens, it holds the waterstop. Next, the contractor pours the concrete for the adjacent monolith around the other half of the waterstop. The resulting monoliths have about a one-inch gap between them, filled by the waterstop.

The lock walls contain water tunnels called culverts running through them, which are about twelve and a half feet square, for emptying and filling the lock chambers. Waterstop is required to be installed around the culverts at each vertical monolith joint.

Paragraph 14.3 of the contract specifications provides, in part:

14.3 Waterstops. Waterstops of rubber or of polyvinylchloride (PVC) shall be installed in joints as shown on the drawings or as otherwise directed. The type of material, location, dimensions, and method of installation shall be as shown on the drawings. In order to eliminate faulty installation that may result in joint leakage, particular care shall be taken to see that the waterstops are correctly positioned during installation. The bottom of each waterstop shall be embedded in the foundation as shown on the drawings. All waterstops shall be installed so as to form a continuous watertight diaphragm in each joint____

This paragraph further provides that PVC waterstops shall conform to the requirements of CRD-C 572. CRD-C 572-74 provides, in part:

2.1 Waterstop. The waterstop shall be of the shape and dimensions shown on the drawings accompanying the project specifications.
3. Inspection and Testing.
3.1 All material and all waterstop will be subject to rigid inspection and testing in order to insure that the supplied waterstop meets the requirements of these specifications. Every facility shall be provided for representatives of the Government to perform careful sampling and inspection of the finished waterstop. [833]*833The sampling of finished waterstop and all testing of finished waterstop, and job-made splices will be done by the Government

Contract provision CRD-C 572-74, quoted above, also contains detailed requirements for testing samples of finished waterstop, including tensile strength, ultimate elongation, low temperature brittleness, stiffness in flexure, and accelerated extraction. Paragraph 8 of this provision warns that “the waterstop may be rejected if it fails to meet any of the requirements of these specifications.”

Paragraph 14.3 further provides:

14.3.3 Testing. The contractor shall submit samples of non-metallic water-stops and samples of job-made and factory-made splices of nonmetallic water-stops for inspection and testing in accordance with CRD-C 513 and 572. The testing of the samples of waterstops and splices shall be performed by and at the expense of the Government. If a sample fails to meet the specification requirements the waterstop or splicing method will be rejected and new samples shall be submitted for inspection and testing. The cost of retesting will be deducted from payments due to the contractor____
14.3.3.1 Samples of Waterstop Material. Each sample shall be a piece not less than 12 inches long cut from each 200 feet of finished waterstop furnished. Each sample shall be identified to indicate the manufacturer, size, type of material, and quantity of material and shipment [the] sample represents.
Adequate provisions shall be made to support and completely protect the waterstops during the progress of the work. The contractor shall replace and repair, at his expense, any waterstop punctured or otherwise damaged before final acceptance of work____
14.3.2 Splices. All joints in the water-stop shall be spliced together to form a continuous watertight diaphragm in each joint.
14.3.2.1 Non-Metallic Waterstops. All splices shall be neat with the ends of the jointed materials in true alignment____ The continuity of the characteristic members of the cross sections of the water-stop design ribs, ribs, tabular center axis, protusions [sic], and the like [sic] be maintained across the splice.

The contract also contains General Provisions (GP) and Special Provisions (SP) with regard to inspection and testing of materials and workmanship. Clause GP-10 entitled “Inspection and Acceptance” provides, in part:

(a) Except as otherwise provided in this contract, inspection and test by the Government of material and workmanship required by this contract shall be made at reasonable times and at the site of the work, unless the Contracting Officer determines that such inspection or test of material which is to be incorporated in the work shall be made at the place of production, manufacture or shipment of such material____
(b) The contractor shall, without charge, replace any material or correct any workmanship found by the Government not to conform to the contract requirements, unless in the public interest the Government consents to accept such material or workmanship with an appropriate adjustment in contract price.

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Related

Granite Construction Company v. The United States
962 F.2d 998 (Federal Circuit, 1992)

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Bluebook (online)
37 Cont. Cas. Fed. 76,080, 22 Cl. Ct. 831, 1991 U.S. Claims LEXIS 135, 1991 WL 58497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granite-construction-co-v-united-states-cc-1991.