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.
Keep a Pass-Thru Claim Burning, Don’t Extinguish Liability
Prime contractors, have you ever submitted a subcontractor’s claim to a public owner? Subcontractors, have you ever wanted to submit a claim against the government, but you had no contract with government?
When You Can’t Recover from a Third-Party (The Economic Loss Doctrine)
Suppose that you (the Contractor) had extra costs and want payment for those extra costs from the designer.
Barbecue and Construction Contracts
While barbecue recipes can be short and simple, contracts can be long and complicated. Fundamentally, though, recipes are very much like contracts: what’s required, how much of each part/ingredient, in what order should they be assembled/added, when, and for how long?
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.
