Contractor Obtains Summary Judgment on Entitlement Based on Government Response to Pre-Bid Question

The Civilian Board of Contract Appeals in Wu & Associates granted the contractor's motion for partial summary judgment on entitlement to recover additional funds to strengthen flooring to move heavy equipment for an elevator modernization project.

Prior to bid, a prospective bidder had submitted a request for information (RFI) concerning whether additional floor protection would be necessary to move equipment down the 17th floor hallway to perform the required work. In response, the Government noted that this would be "means and methods" by the contractor but that proper skids are required over the raised floor to distribute the load.

The successful bidder sought additional compensation to strengthen the floor after it determined that skids were insufficient to adequately distribute the elevator equipment load. The Government denied the request and ensuing claim, asserting that the means and methods to move the equipment were the responsibility of the contractor.

The contractor appealed and filed a motion to establish entitlement based on either the Differing Site Conditions or the Changes clauses of the contract. The Government filed a cross-motion to deny entitlement, asserting that the movement of equipment across the 17th floor was a "means and methods" issue for the contractor to determine, noting that bidders had the ability to visit the building and observe the site conditions pre-bid.

Ultimately, the Board ruled in favor of the contractor, noting that the pre-bid answer by the Government regarding distributing the load to move equipment across the 17th floor does not suggest discretion as to effectuating the task. Rather, it sets forth what is required to successfully distribute the load of the elevator equipment for moving.

The Board then held that (a) the statement in the RFI was a design specification and therefore the contractor was entitled to rely on its accuracy, (b) the design specification was defective, (c) the contractor relied on the design specification when submitting its bid, and (d) the design specification error was not patent. Accordingly, the Board granted the contractor's motion to establish entitlement as a matter of law.

This decision holds that a pre-bid RFI can be used as a basis for recovery under the Changes clause of a contract. From a bidder's perspective, the pre-bid RFI should be clear in the guidance it seeks, i.e., clear direction as opposed to merely a suggestion or recommendation. The former, if incorrect, may form the basis for a claim under the Changes clause, while the latter will not be sufficient.