Imagine a severe thunderstorm damages a local public school such that classes cannot be held. Total repairs will cost almost $1.5 million and they must be completed soon so classes can resume.
What if you’re the contractor working diligently to repair the school building so students can resume classes? You promptly finish all the work, the school district pays for 2/3 of your work, but refuses to pay the balance, so you file a lawsuit against the school district.
But, the school district successfully argues your contract was void an unenforceable. Without a valid contract, the school district has no duty to pay for any of your work. Unfortunately, under the Virginia Public Procurement Act, the school district wins the lawsuit; so, it doesn’t have to pay you for the work that you timely and properly completed and it could sue you for return of the partial payments.
This recently happened to a public contractor in Virginia. Under the Virginia Public Procurement Act, there are provisions to expedite the creation of some contracts, but the public entity must properly justify and document the process.
Contractors, protect your rights by:
- Knowing the law governing your project and
- Verifying the public entity has complied with that law before it’s too late.
In this case, the Contractor performed its work well, but didn’t verify the public entity was properly performing its obligations until it was too late.
Virginia General Contractors Not Protected from Pre-Work Claim Waivers
On March 2, 2018, the Governor approved an act of the Virginia General Assembly to make unenforceable pre-work waivers of lien rights […]
Adding Terms to a Government Contract without Saying So
Imagine an incredulous Contractor asking, “Show me in the Contract where it says I’m supposed to do X?” The Government Contracting Officer smugly answers, “even though the Contract doesn’t say so, you must do it anyway.” Is that even possible, when, how?
Differing Site Conditions: When the Part Does Not Equal the Whole
If all apples are fruit, then why are all fruit not apples?
Forum Selection Can Be a Home-Court Advantage
I promise that any disputes between us will be argued at your house. Time passes and a dispute begins to brew. Now, I want to argue at my house, not at yours. You pay costs to argue at my house that you wouldn’t have incurred had I done as agreed. Should I have to reimburse your costs?
No-Damage-for-Delay and Owner-Related Dispute Clauses are No Defense to Surety Liability Under Miller Act
Prime Government Contractors - you may need to update your interim payment waivers.
Contractual Fairness is Whatever the Parties’ Agreed
When you know a current action or inaction is wrong, but you do not object, should you be allowed to object later?
Which Comes First – Specifications or Drawings?
Sometimes it's not better to ask for forgiveness after-the-fact.
Government Contract Claims: When Appeal is Rejection of Settlement
Without a reservation of rights, appealing a Contracting Officer’s Final Decision is a rejection of any offer of payment or settlement included therein. So, the contractor had only three options.
Linking Obligations
If you want to bind the subcontractor to the prime in every way the same as the prime is bound to the owner, then the incorporation clause of the subcontract should be: . . .
