Requirements may exist outside the four corners of the contract when such requirements are: (1) otherwise mandatory and (2) express a significant or deeply ingrained strand of public procurement policy. In other words, your contract may include requirements not shown or otherwise indicated in the contract documents.
In an example of this, a Contractor agreed to provide pre-engineered metal buildings for the Army’s use at Camp Edwards, Massachusetts. Under the Miller Act and the FAR, bonds for construction projects are mandatory. The mandate for payment bonds is based upon the “deeply ingrained strand of public procurement policy” that security should be provided for entities or persons furnishing labor and materials in the performance of government contracts. The mandate for performance bonds is due to the Government’s need for security to ensure the use of public funds results in a finished product since not completing a public project could be a waste or misuse of public funds. Of course, (dripping with sarcasm) we’ve never seen a public entity waste or misuse public funds, right.
The Armed Services Board of Contract Appeals held bonds were part of the contract even though bonding requirements were not expressly stated nor incorporated by reference. The U.S. Court of Appeals for the Federal Circuit agreed with the Board. K-Con, Inc. v. Secretary of the Army, U.S. Court of Appeals for the Federal Circuit, Case No.: 2017-2254 (Nov. 5, 2018).
Next time you review an RFP, carefully consider what you don’t see but that may still be required.
Read another short example here: Adding Terms to a Government Contract without Saying So.
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.”
Prime Contractor Had No Duty to Help Surety Investigate Sub’s Default
We all know what happens when we “ASS-U-ME” something. So, we should all carefully avoid assuming things unnecessarily.
It’s Good to Be the King
Mel Brooks in the movie History of the World: Part I (1981) said it best – “It’s good to be the King.” It’s also true when asserting claims against the State or an arm or agent of the State.
