A recent article published by Roads and Bridges magazine reports that the Office of Management and Budget is working to broaden the scope of the Buy America and Buy American Acts. Some of these efforts were intended by the 2021 Infrastructure Investment and Jobs Act (IIJA). But the latest effort goes beyond the intended scope of the IIJA by expanding application from steel and iron to lumber, drywall, glass, and more. As the Biden Administration tries to close a purported “giant loophole” in domestic preferences, contractors may have to pay the price. Previously, I’ve written about the Build America, Buy America provisions in the IIJA. Although the White House and OMB assert that waivers may be granted, historically they are few and far between.
Trick or Treat in Government Contract Claims
Without a request for a contracting officer’s final decision, claimants may seek treats, but get tricked instead.
Owner Nonpayment is No Defense to Miller Act Claim
As if you needed confirmation that the Federal Miller Act is a powerful tool for unpaid subcontractors, this is it. Even when a Prime ordered and accepted the Sub’s work, but didn’t have to pay under the Subcontract, the Subcontractor still. . . .
Trust, but Verify
Rely at your own risk upon a Contracting Officer’s statements when statutes or contract provisions may conflict.
Payment for Verbal Changes When a Writing was “Required”
Even if your agreement can only be modified by a writing, you may still have a good argument to be paid for extra work.
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.
