Has your work on a government contract ever been delayed by another contractor? Did you (the prime contractor) have no control over the other contractor or entity? Did the Government promise you the other contractor would not inhibit your work? If yes to all three, consider the following success story of a Contractor’s recovery for delays against the Government caused by a third-party:
The successful Contractor under an IDIQ contract to perform canal excavation and sediment removal for the Department of Agriculture in St. Bernard Parish, Louisiana. Contractor encountered delays due to the continued presence of another contractor under a separate government contract at the same project site.
Key to the recovery was that during pre-bid site visit, the Contractor asked if the third-party’s work would be complete prior to the Contractor starting work. The Government replied, “Yes!” Fortunately for the Contractor, the pre-bid Q&A’s were made a part of the Contract by the Government’s own express direction.
Generally, the Government is not responsible for delays caused by third parties, even other contractors at its own project site, unless the Government affirmatively indicates the site will be ready and available.
The Civilian Board of Contract Appeals found the pre-bid Q&A’s were sufficient to establish a warranty by the Government that the site would be available. The Contractor recovered from the Government for the delays caused by the third-party contractor.
Trick or Treat in Government Contract Claims
Without a request for a contracting officer’s final decision, claimants may seek treats, but get tricked instead.
Owner Nonpayment is No Defense to Miller Act Claim
As if you needed confirmation that the Federal Miller Act is a powerful tool for unpaid subcontractors, this is it. Even when a Prime ordered and accepted the Sub’s work, but didn’t have to pay under the Subcontract, the Subcontractor still. . . .
Trust, but Verify
Rely at your own risk upon a Contracting Officer’s statements when statutes or contract provisions may conflict.
Payment for Verbal Changes When a Writing was “Required”
Even if your agreement can only be modified by a writing, you may still have a good argument to be paid for extra work.
Pirates and Arbitration
How does a pirate solve a dispute (besides walking the plank)?
Bases Covered?
Contractors, will your current insurance policy cover “your work” as a joint venture partner? The typical answer is NO.
Two Paths at the Same Time to the Same Place
“Two roads diverged in a wood, and . . .” the Prime Contractor had to take both roads at the same time to the same place.
Rules, Which Rules?
Good Idea: Include a choice of law clause in your contract to promote consistency and predictability (while reducing potential costs and risk).
Government Liability for Third-Party Delays
Generally, the Government is not responsible for delays caused by third parties, even other contractors at its own project site, unless the Government affirmatively indicates the site will be ready and available.
