Recently, I posted about the Spearin Doctrine, which says that if a contractor follows the owner’s plans and specifications and something doesn’t work, the contractor is generally not at fault. But, this only works if the contractor first follows the owner’s design. It doesn’t work when the owner’s design will work as is, but you think it could be better.
In recently denying an HVAC Contractor’s appeal, the Armed Services Board of Contract Appeals stated, “the government may require performance [either] in excess of, or below, the standard normally accepted in a trade.” In other words, the government need not follow the industry standard. It can do less or more.
Under a firm, fixed-price contract managed by the Army Corps of Engineers, the Contractor agreed to upgrade the HVAC equipment at a Child Development Center at a facility in Hanover, NH. The project was “limited by budget constraints,” but included work intended to remedy the “thermal discomfort” of the facility’s occupants.
The Contractor advised the Corps that certain design improvements would help the end-user. The Corps considered the advice, but rejected the Contractor’s suggestion. Thereafter, the Contractor “delayed the project because it disagreed with the government’s design choices.” Ultimately, the Corps terminated the Contractor for default.
Government Must Review Claims in Good Faith, Not “Conjure Up” a “Baseless Retaliation”
A contracting officer’s review of certified claims submitted in good faith is not intended to be a negotiating game where the agency may deny meritorious claims to gain leverage over the contractor.
Termination for Convenience was OK to Get a Lower Price
When Massachusetts’ highest State court rejected Federal law on termination for convenience (T4C) a public entity’s “sole discretion . . . for […]
Pirates (Parties) Should Arbitrate Arbitrability
Yes, the word “pirates” is an anagram for “parties.” Participants in a lawsuit, arbitration, or mediation are collectively referred to as parties. Are they pirates too?
Very Bad Behavior Without Bad Faith is Not a Breach of Contract
Despite “abhorrent” behavior by the Army Corps of Engineers, a majority of the Armed Services Board of Contract Appeals held there was […]
Government Construction Contracts Require Bonds, Even When Contract Doesn’t Say So
Yesterday (Nov. 5, 2018), the Fed. Cir. Ct. of Appeals again endorsed the Christian doctrine, which can make unstated requirements part of a government contract.
Government’s Negligent Estimate a Trick?
The Government’s negligent estimate failed to provide the “most current information available.”
Prime Contractor Had No Duty to Help Surety Investigate Sub’s Default
We all know what happens when we “ASS-U-ME” something. So, we should all carefully avoid assuming things unnecessarily.
It’s Good to Be the King
Mel Brooks in the movie History of the World: Part I (1981) said it best – “It’s good to be the King.” It’s also true when asserting claims against the State or an arm or agent of the State.
Smoke Without Fire: Damage from Concrete Dust Covered by Insurance
You’ve heard, “where there’s smoke, there’s fire.” In this instance, the smoke was concrete dust that damaged a warehouse full of aircraft […]
