SCENARIO:

The U.S. Agency of Engineers (Agency) contracted with Concrete Construction Company (CCC) to redesign and reshape the cement weirs of the west fishladder of the Arctic Lock and Dam. The cement work has to be done during harsh winter conditions because the fishladder is in use at all other times. Three bulkhead gates at the upstream entrance to the fishladder were expected to keep the work area virtually dry.

According to the contract, CCC was required to lower the bulkhead gates into their sealed position to assure that water did not flow into the fishladder and affect concrete placement areas. CCC failed to obtain a water-tight seal on one of the bulkhead gates and was plagued by water throughout the project.

After the contract work was completed by CCC and accepted by the government, the contractor filed a claim at the Federal Contract Appeals Court based on the bulkhead gates' failure to provide a water-tight seal. CCC charges that according to the contract CCC had to "lower the gates in the sealed position." CCC contended that it did so under the direction of Agency personnel. CCC claims that the Government's property (i.e. the gates) malfunctioned due to insufficient maintenance and age. For these reasons, CCC charges that the government is liable for the delays and increased costs that resulted from unexpected water and ice in the cement placement area.

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