By Bruce Jervis
Government agencies at all levels are fond of publishing guides and manuals pertaining to construction materials and methods. They are usually detailed and precise. And, they are available, primarily online, to anyone with an interest.
One might think these agencies should be lauded for their transparency regarding their construction needs. There is a problem, however. The manuals state they are provided for purposes of information and guidance only. Only a contract defines the required scope of work.
The U.S. Court of Federal Claims recently grappled with the status of a “materials manual.” The manual, not incorporated by reference into the contract, specified testing procedures at odds with what agency officials actually used on the job. The manual was admissible evidence regarding the agency’s understanding of trade custom and practice. But trade practice cannot supersede the express terms of a contract. And, broad language in the contract gave the agency discretion in its choice of testing methods.
So, what good are these “informational” manuals and guides? They can’t be relied upon unless expressly incorporated by reference into the contract. They are frequently a source of confusion and misunderstanding. At worse, they can create contractual ambiguity. Why publish them at all? Your comments are welcomed.