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).
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: . . .
