Constructors and material suppliers are frequently subject to material testing specifications. While many of the specified tests are quite precise and objective, some are surprisingly loose. Laboratory technicians, both in-house and independent, are allowed discretion in establishing testing procedures. To what extent can longstanding procedures establish trade custom, which in turn should be read into the testing specification?

This question was recently presented to the South Dakota Supreme Court. The state Department of Transportation had for many years used a particular procedure when testing aggregate for durability during freeze/thaw cycles. The standard testing specification stipulated the results that had to be achieved, but was silent regarding whether this procedure should or should not be used. The DOT stopped using the procedure. An approved aggregate supplier with a longstanding relationship with the DOT was aggrieved when its material was rejected. The supplier argued that the testing procedure had become established trade custom and should be read into the specification.

Other cases this week involved a public project owner’s failure to inform a subcontractor of changes to a prevailing wage rate schedule and the application of an economic price adjustment clause to a federal construction contract. The sub was not allowed to sue the project owner for the damages it incurred as a result of wage underpayments. And, the price adjustment clause was discretionary, not mandatory, so it would not be read into the contract.