Constructors and material suppliers are frequently subject to material testing specifications. While many of the specified tests are precise and objective, some are surprisingly loose. Laboratory technicians, both in-house and independent, are allowed a degree of discretion in fashioning the testing procedures. To what extent can longstanding procedures establish trade custom which in turn should be read into a testing specification?
This question recently arose in South Dakota. For many years the state Department of Transportation had used a particular procedure when testing aggregate for durability during freeze/thaw cycles. The DOT’s standard testing specification stipulated the results that had to be achieved, but was silent regarding whether this procedure should be used. The DOT stopped using the procedure. An approved aggregate supplier of longstanding had its material rejected. The supplier contended that the testing procedure had become established trade custom and should be read into the specification.
What is your opinion? Should testing specifications be written in a manner which precludes any discretion or flexibility in establishing testing procedures? Is this even possible? If a public project owner has been using a particular procedure for a long period of time, are constructors and suppliers entitled to expect adherence to that procedure, even if it is not called for in the specification? I welcome your comments.
Featured in Next Week’s Construction Claims Advisor:
- Construction Manager Responsible for Job Site Safety under AIA Agreement
- Contractor Schedule Not Realistic – Delay Claim Denied
- Requirement for Written Change Order Cannot Be Waived on Public Contract
Bruce Jervis, Editor
Construction Claims Advisor
