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.
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.
Construction Dispute Settlement: Dealing with Details
Reap the benefits of settling a construction dispute by doing these things.
E-mail Signature Not Enough to Certify a Claim
Construction project professionals routinely send e-mails with “signatures,” which typically include the sender’s typewritten name, title, contact information, and/or company logo. But, this sort of e-mail “signature” is not enough to certify a claim to the Government.
Government Contractors: Ask for a “Sum Certain” in Your Claim
If your Claim includes an item for damages with an amount “TBD,” you could lose the entire Claim.
Contractors: Be Aware When Contracting with Virginia Public Agencies
Without a valid contract, a Virginia public entity has no duty to to pay for any of your work.
Constructive Acceleration
Contractors know that time is money. So, the point is clear when expressly told to “Speed Up! Go Faster!”
But, what do you […]
Construction Contracts & Whodunit
Imagine reading a crime novel and just when you think you figured out whodunit, a plot twist suggests a different culprit. In construction contracting, finding the right answer can be a difficult task when
