Mel Brooks in the movie History of the World: Part I (1981) said it best – “It’s good to be the King.” (See short movie clip.)
It’s also true when asserting claims against the State or an arm/agent of the State.
Whereas the State or a County may enter into contracts, their liability is limited solely to the terms of that contract. Similarly, liability of a contracting State is limited to breach of the contract and typically excludes claims or remedies outside the scope of the contract.
In a recent example, the Contractor agreed to make alterations and additions to a Public School’s facility. After delays and extra costs arose, the Contractor alleged two counts of breach of contract and one count each of unjust enrichment and quantum meruit. The Court dismissed the two latter counts by reviewing and applying the history and basis for the County’s sovereign immunity as an arm of the Commonwealth.
Contractors should style claims within the contract provisions. There is virtually no remedy against the State outside the contract. (See related post.)
Akian, Inc. and Penn. Nat’l. Mutual Casualty Ins. Co. v. Spotsylvania County Public Schools, 2018 Va. Cir. Lexis 329, CL18-2439 (Spotsylvania County Cir. Ct., Sep., 21, 2018).
Pirates and Arbitration
How does a pirate solve a dispute (besides walking the plank)?
Bases Covered?
Contractors, will your current insurance policy cover “your work” as a joint venture partner? The typical answer is NO.
Two Paths at the Same Time to the Same Place
“Two roads diverged in a wood, and . . .” the Prime Contractor had to take both roads at the same time to the same place.
Rules, Which Rules?
Good Idea: Include a choice of law clause in your contract to promote consistency and predictability (while reducing potential costs and risk).
Government Liability for Third-Party Delays
Generally, the Government is not responsible for delays caused by third parties, even other contractors at its own project site, unless the Government affirmatively indicates the site will be ready and available.
Keep a Pass-Thru Claim Burning, Don’t Extinguish Liability
Prime contractors, have you ever submitted a subcontractor’s claim to a public owner? Subcontractors, have you ever wanted to submit a claim against the government, but you had no contract with government?
When You Can’t Recover from a Third-Party (The Economic Loss Doctrine)
Suppose that you (the Contractor) had extra costs and want payment for those extra costs from the designer.
Barbecue and Construction Contracts
While barbecue recipes can be short and simple, contracts can be long and complicated. Fundamentally, though, recipes are very much like contracts: what’s required, how much of each part/ingredient, in what order should they be assembled/added, when, and for how long?
Show Your Work
A mentor of mine once said that process and procedures can be more important than substance and results. Like solving a math problem, how you solve it is often more important than the answer itself. The same is true in resolving construction contract disputes with public owners.
