“Tank Mix” and Match: Utilizing the Material and Workmanship Clause in Government Contracts

Construction and Procurement Law News, Q1 2015

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Last summer, The Armed Services Board of Contract Appeals (“ASBCA” or “Board”) considered the enforceability of proprietary specifications in government contracts in Appeals of Classic Site Solutions, Inc. Classic Site Solutions, Inc. (“CSSI”) entered into a contract to construct an automotive vehicle test and evaluation facility for the federal government. The contract called for the construction of a test track for military vehicles including tanks. The contract specified the type of concrete mix to be used in the construction of the test track as “Tank Mix,” if locally available. If “Tank Mix” was not locally available, the contract specified that CSSI could, alternatively, develop its own mix or use a mix called “MdDOT Superpave hot mix.”

Once the project began, CSSI submitted a mix design which listed “MdDOT Superpave hot mix” as the concrete for the test track. The government rejected the submittal noting that CSSI was not entitled to use the alternative mix so long as “Tank Mix” was locally available. CSSI ultimately performed the work using “Tank Mix,” but filed a change order request and then a certified claim for the additional cost of “Tank Mix” relative to the alternative mix it originally submitted.

After denial of the certified claim and a subsequent appeal, the ASBCA considered the parties’ competing motions for summary judgment. The Board evaluated several other arguments in the parties’ motions and then turned to CSSI’s claim that, pursuant to the Material and Workmanship clause of the Contract, it was entitled to provide a mix design that was equal to “Tank Mix.

Per the Board, the Material and Workmanship Clause (FAR 52.236-5) was designed to promote competition and not limit a contractor to a specific name brand. Under the clause, a contractor has the right to submit a substitute product for a specified proprietary item “absent a warning that only the proprietary item will be accepted” if the substitute product is of equal quality. To prove entitlement to the use of substitute product the contractor must demonstrate:

“‘(1) the specifications are proprietary, (2) appellant submitted a substitute product along with sufficient information for the contracting officer to make an evaluation of the substitute, and (3) the proposed substitute meets the standard of quality represented by the specifications.’”

Without providing a detailed explanation, the Board concluded that the contract specifications did not contain a warning that only “Tank Mix” would be accepted, but CSSI did not develop the factual record sufficiently for the Board to rule on whether CSSI satisfied the burden of proof on its entitlement to use a substitute mix. Thus, the Board denied CSSI’s motion for summary judgment on this issue.

The Board’s decision suggests that contractors should be cognizant of the requirements of the Material and Workmanship Clause when negotiating for the use of alternate products. Through correspondence, submittals, or other written materials, a cautious contractor should document how the specified product is proprietary, provide sufficient information for the contracting officer to evaluate the alternate product, and demonstrate that the alternate product is equivalent in quality to the specified product. Such an approach may help a contractor avoid a prolonged and arduous claims process.