It is a maxim in construction contracting that the contractor is responsible for the means and methods of construction. The project owner’s design documents define what must be achieved. The contractor has both the responsibility and the right to devise the method for accomplishing that goal.

Sometimes, however, design documents stipulate a method for performing the work. The owner may want to mitigate the impact of construction operations on the public, surrounding property or the environment. Or, the owner may be convinced a particular method will be the most cost effective and wants bids priced accordingly. This was probably the motivation in a case recently heard in the Court of Federal Claims.

The highway contract specified that excavated material be crushed on site to produce the backfill required on the project. The successful low bidder had planned and priced the work, however, on the basis of spoiling excavated material and importing backfill. When the project didn’t proceed as expected, the contractor’s decision to deviate from the specified method of performance defeated its claim for additional compensation.

Other cases this week involved the impact of inaccurate progress payment requests on a contractor’s mechanic’s lien rights and the responsiveness of a low bid that did not acknowledge an inapplicable section of the bid form. The inaccurate payment requests did not render a subsequent lien fraudulent or invalid. And the bid was ruled responsive.