Contractor Said Agency’s Failure to Object to Non-Compliant Drawings Changed the Contract. CBCA Didn’t See It That Way.

The agency rejected the contractor’s products. The contractor said it had given the agency non-compliant drawings of the products after award. Because the agency didn’t object to the drawings, the contractor reasoned, the requirements had changed. CBCA rejected the argument. The contractor never submitted non-compliant drawings. The requirements had not changed. 

King Rox LLC v. Department of State, CBCA 7598 

• Claim – The contractor agreed to deliver fuel tanks.  The contractor delivered tanks, but the agency rejected them as non-compliant. The contractor claimed it had submitted drawings to the agency, which showed the tanks were non-compliant. The contractor argued the agency had not objected to the drawings, so the agency had agreed to different requirements. 
• Pre-Award Disclosure – The contractor argued it had disclosed the drawings to the agency before the contract was awarded. Thus, the drawings effectively became part of the contract. But the board found no evidence that the contractor had disclosed the drawings before award.  
• Post-Award Disclosure – The contractor also argued it had disclosed the non-compliant drawings after award. This board found the contractor had, in fact, given the agency drawings after award. But CBCA found those drawings did not indicate the tanks would be non-compliant. What’s more, the board noted, even if the post-award drawing had been non-compliant, they could not change the requirements. Once the contract was executed, the government was entitled to strict compliance with the requirements. 

The contractor is represented by Hammad Daniyal. The government is represented by Alexandra N. Wilson of the Department of State. 

–Case summary by Craig LaChance, Senior Editor 

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