If all apples are fruit, then why are all fruit not apples? Because the part does not represent the whole. A Government Contractor discovered this when it learned that all unsuitable material was unsatisfactory material; but, all unsatisfactory material was not unsuitable material. Let me explain . . .
Under a Contract with the U.S. Army Corps of Engineers for two explosives storage magazines and a storm drain at Picatinny Arsenal, New Jersey, “unsatisfactory materials” were to be replaced with satisfactory materials. Basically, “unsatisfactory materials” included anything that could not be used as backfill.
As is typical, the Corps answered several pre-bid questions that later became amendments to the Contract. One of the Corps’ answers stated, “assume unsuitable material is not encountered.” The Contractor improperly equated “unsuitable material” with “unsatisfactory material.”
Although the term “unsuitable material” was not separately defined in the Contract, the Court found that other Contract provisions (e.g., pre-bid Q&A’s, specs, and soil borings) helped to define it as “unsatisfactory material” but only at certain depths/locations. Thus, the pre-bid Q&A did not pertain to “unsatisfactory materials” generally; but, only a subset of unsatisfactory materials – “unsuitable materials.”
While the whole included the part (unsatisfactory material included all unsuitable material), the part did not equal the whole (unsuitable material did not include all unsatisfactory material).
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: . . .
Termination of Government Contracts for Convenience (T4C)
Imagine you’re a Government Contractor under a firm, fixed-price contract and you’ve done nothing wrong. Nevertheless, the Government has decided to unilaterally end its contract with you. Yes, the Government can do this...
Government Contractors: Build a Snowman in August
As a Government Contractor, when have you agreed to perform a certain way, but later realized that another way is better for everybody? When the Government agrees, expressly or impliedly, to the alternative performance, it waives a credit for the unperformed work.
