When a contractor delivers goods to the government that do not conform to the precise requirements of the contract, the results are usually . . . not good. When the agency specifies certain products in the contract, the contractor should plan to satisfy the exact specifications (or prepare to suffer the consequences).
A straightforward example arose recently on a GSA construction contract. The contract called for the installation of products from specifically named manufactures (with limited sources identified). The contract also expressly called out that the agency would not permit substitutions for those named products.
After award, the contractor proposed substitutions for what it considered “equivalent” products from a manufacturer that did not appear on the agency’s approved source list. The agency declined to consider the contractor’s requested exceptions.
The contractor wisely proceeded to provide the brand name products – but also filed claims seeking the excess costs associated with those products (as compared to the lower-priced equivalents that it suggested to the agency). The contractor argued that the agency improperly rejected the substitution.
Not surprisingly, the Civilian Board of Contract Appeals granted the agency’s motion to dismiss. The Board found that the contract language clearly did not provide for substitutions – and that GSA did not breach the contract by refusing to consider the contractor’s proposed equivalents.
Continue reading at: Fox Rothschild
