During a recent soccer game, my seven-year-old son took the ball squarely in the face. But, he walked it off and continued playing. Contractors must do the same with changes.
In 2006, under a contract with NAVFAC for repairs to a wastewater treatment system at Naval Station Guantanamo Bay Cuba, the Contractor encountered differing site conditions. NAVFAC did not issue a suspension or stop work order, but the Contractor stopped working awaiting responses to RFIs. NAVFAC did not respond to all the RFIs. So, the Contractor submitted a certified claim, but the Contractor never resumed work. The Contractor should have continued working.
Under the Federal Acquisition Regulations, the Contractor is obligated to “prosecute the work diligently” and continue performance pending the outcome of a claim. (FAR 52.211-10 and 52.233-1(i)). Doing so not only mitigates potential delays and damages, but it ensures that when a claim is submitted, a “sum certain” (i.e., showing of damage) is possible.
In this case, the Contractor’s claim submission was premature and the Contractor’s refusal to perform directed or constructive changes pending the promise of payment precluded the ASBCA from having any power to resolve the dispute. The ASBCA dismissed the Contractor’s appeal because the Contractor sought future damages for work it had not yet performed. At worst, NAVFAC could have terminated the Contractor for default.
Appeal of Islands Mechanical Contractor, Inc., ASBCA No. 59655 (April 13, 2017)
Show Your Work
A mentor of mine once said that process and procedures can be more important than substance and results. Like solving a math problem, how you solve it is often more important than the answer itself. The same is true in resolving construction contract disputes with public owners.
Substandard is Not Defective
The government need not follow the industry standard. It can do less or more.
Hide, Seek, & Seek
Have you ever played hide and seek? If you are the seeker, do you win the game when you find the hidden person? Yes, of course! Unless, you’re a government contractor.
Contractor Schooled School
Have you ever done exactly what you were supposed to do, but it didn’t work and you were blamed anyway? Nevertheless, if contractors follow the owner’s plans and it still doesn’t work, the contractor may be without fault – this is as it should be.
Walk It Off, Keep Going
During a recent soccer game, my seven-year-old son took the ball squarely in the face. But, he walked it off and continued playing. Contractors must do the same with changes.
Are We There Yet?
Next time you close a deal, get the essential terms on paper and signed by all parties before it’s Miller Time.
Show Me the Money!
You told the guy to do the work, the work is done, and now it’s time for payment, right? But, you only told […]
Reasonable ≠ Ratio
“Circuit court litigation comes at a price, sometimes a heavy price.”
Words Matter
Remember the adage, “what you say today could bite you tomorrow.”
Recently, a Contractor won its argument before the Armed Services Board of […]
