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.
Roads & Bridges
Where Does the Buck Stop?
Jon is a monthly contributor to Roads & Bridges magazine. He has been writing the law section for the magazine since January 2020. The link below will take you directly to the Roads & Bridges […]
Pay-If-Paid Unenforceable in Virginia Starting Jan. 1, 2023
As of Jan. 1, 2023, pay-if-paid clauses are unenforceable, regardless of whether a surety/payment bond claim is involved. This is only for subcontracts created on/after 1/1/23.
Also for subcontracts created on/after 1/1/23, the prime must specifically […]
How Short is Too Short
A limitations period is too short when it’s unreasonably short.
Construction Contracting Without Relief Clauses During COVID-19
What to do if your contract lacks the parts to handle COVID-19? Considerations for creating new contracts during COVID-19.
Your Contract Can Handle COVID-19
Uncertainty and risk are not new or novel to contractors. Contracts reduce uncertainty and share the risk of doing or providing something. COVID-19 may have contributed to, but it has not single-handedly created, uncertainty and risk.
Contractors Can Use RFI to Notify the Government
The Board (and the government) should not elevate form over substance in evaluating the sufficiency of a contractor’s notice.
Taxes Due!
It’s tax season again, so it’s time to pay the piper.
Contractor Wins when Government Reconsiders Accord
Ever had buyer’s remorse or second-guessed a decision? When the U.S. Army Corps of Engineers did that, a Contractor won its claim for time and money.
On a flood control project near Nogales, Arizona, severe flooding […]
Claim Certified with Digital Signature Deemed OK
The law is not a trend-setter. It doesn’t readily change or adapt to tech. So, a commonplace practice in business became a dispute when a claimant digitally certified a claim under the Contract Disputes Act.
Jonathan J. Straw
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