Construction Contracts & Whodunit

Imagine reading a crime novel and just when you think you figured out whodunit, a plot twist suggests a different culprit.  Previously, I’ve written about making sure the answer you think is right is, in fact, the right answer.  In construction contracting, finding the right answer can be a difficult task when there are several separate contract provisions, specifications, and other documents incorporated into the parties’ agreement by reference.

Recently, a Contractor provided construction management services for NAVFAC at U.S. Naval Base Kitsap in Washington State.  At bid time, the Contractor understood all the many parts of the solicitation allowed the roles of Superintendent and Safety Officer to be fulfilled by the same person.  Post-award, NAVFAC demanded the two positions be fulfilled by two different people.

The U.S. Court of Federal Claims agreed with the Contractor.  The Court interpreted together all the various references to Superintendent and Safety Officer in the parties’ agreement – a tedious task.  Even the well-written Court’s opinion (like a good crime novel) seemed to suggest an answer until a new fact was introduced from a separate part of the parties’ agreement (like a plot twist).  You don’t know whodunit until the end.

Idaho Stage, LLC v. U.S., 131 Fed. Cl. 727 (2017).

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