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.
Acceptance and Intervening Cause Avoided Construction Warranty Claim
Like cars, computers, and appliances, construction projects include warranties too. Similarly, construction project warranties are limited to causes within the contractor’s control […]
Insurance Company Had No Duty to Defend Under Eight Corners Rule
To decide if an insurer has a duty to defend, a Virginia State or Federal Court may only look at the allegations in the complaint and the insurance policy to determine if a judgment against the insured will be covered by the policy.
Owner SOL When Mandatory Mediation Didn’t Toll Statute of Limitations
Contract interpretation strives to find the meaning of all parts together.
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.”
