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.
Navigating the Requirements for Claims against Virginia Public Entities
Contractors making claims against Virginia public entities must follow ALL applicable requirements. Such requirements may be found in several places, so check […]
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.
