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Limit on Requirements for Correcting Nonconforming Work

ASCC Position Statement #41

Most project specifications contain provisions for nonconforming work such as the following: “Concrete work that fails to meet one or more requirements of the Contract Documents and cannot be brought into compliance may be rejected. Repair rejected concrete work by removing and replacing or by reinforcing with additional construction as required by the Architect/ Engineer.”

ACI 301,“Specifications for Structural Concrete,” contains similar language. Many Owners, Construction Managers, and Engineers believe this gives them the right to order removal and replacement without an evaluation of the work. This belief can be a costly mistake as shown by the result of a construction legal battle involving the U.S. Army Corps of Engineers several years ago [Source: Construction Claims Monthly, September 1992]. 

In the case Granite Construction Co. vs. United States (1992), the U.S. Court of Appeals ruled that when a contractor substantially—but not strictly— complies with a contract’s specifications, the owner may not require replacement of the work if replacement would amount to economic waste. The owner may only take a credit.

In the case in question, the U.S. Army Corps of Engineers awarded a contract to Granite Construction Co. to build a dam and lock in Aberdeen, MS. The
walls of the structure consisted of concrete monoliths with PVC waterstops embedded in the vertical joints to prevent water leakage. After about 10% of the waterstop had been permanently embedded, the Corps inspected the work and determined that it did not comply with contract specifications. The Corps then ordered the waterstop removed and replaced.

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