Volume: 16, Issue: 7 - 04/13/2018
The scope and ramifications of a pre-bid site inspection are frequently misunderstood. When submitting a bid, the contractor probably acknowledges it has familiarized itself with the physical conditions in the field. In fact, the contractor may or may not have availed itself of the opportunity to inspect the site prior to bid submittal. In either event, the contractor will be charged with knowledge of site conditions that could have been observed during a reasonable inspection.
A federal appeals court recently applied this rule. A contractor, who failed to participate in a pre-bid site inspection, was on notice of saturated subsurface soils. Such conditions were visible on the surface of the site, only 100 feet from the excavation area. Read more.
Bidders are not required to conduct an independent pre-bid subsurface investigation. However, every contractor is charged with knowledge of site conditions that could have been observed during a reasonable pre-bid site inspection. This includes soil conditions visible on the surface.
A project owner could not include the amount of subcontractor mechanic’s liens in a judgment against the prime contractor and then contest the validity of those liens. Under the “election of remedies” doctrine, the owner was precluded from defending against the liens.
Volume: 16, Issue: 6 - 03/30/2018
Public works contracts often mandate certification of sizable claims for accuracy and completeness. The federal Contract Disputes Act originated this requirement and it has been replicated by many state and local jurisdictions. Failure to certify can be fatal to a claim, as the requirement is frequently jurisdictional.
On a recent federal project, the contractor asserted claims for delay and retainage. The government terminated the contract for default. The contractor appealed, now claiming that defective government specifications were impossible to perform. None of the claims were certified. Read more.
New Library Additions
Attention Construction Claims Advisor subscribers. This week we have added two of our more popular webinars from 2017 to the Construction Claims Library. Both webinars are now available as a download for your use:
- Practical Construction Law for Architects, Engineers and Construction Managers
- Small Unmanned Aerial Systems: Keep Your Drones from Going Rogue
When a contractor appeals a default termination and asserts affirmative monetary claims against the government, the contractor must certify those claims in accordance with the Contract Disputes Act. But if separate, segregable claims do not exceed the statutory $100,000 threshold, no certification is required.
A public works contract was improperly awarded to a nonresponsive bidder. The low responsive bidder was entitled to recover its bid preparation costs. The nullification of the awarded contract did not provide the low responsive bidder with an adequate remedy. Without receipt of the contract, there was no way to recoup bid preparation costs.
Volume: 16, Issue: 5 - 03/15/2018
Construction contracts are replete with notice requirements. If the contractor sees something, discovers something, believes something, then timely written notice must be provided. It is therefore no surprise that disputes regarding the sufficiency of notices are common. Many times the dispute centers on the proper form or format of the notice.
Strict compliance with notice provisions may or may not be enforceable, and may vary between private, public and federal contracts. In this federal contract, the court ruled that substance overruled form. Read more.
Under the standard government “Specifications and Drawings for Construction” contract clause, notification of a discrepancy can be conveyed through a request for information. Nothing in the contract language or case precedent mandates a special form or format for notification.
An involuntary bankruptcy petition involving other entities within a contractor’s corporate family did not operate to stay a subcontractor’s payment claim against the contractor.
Volume: 16, Issue: 4 - 02/28/2018
A contractor's past experience is a valuable asset. Public construction procurement frequently requires experience with certain work in order to be a "technically acceptable" competitor for a contract. Private project owners also value past experience and do not rely on low price alone when awarding contracts.
The importance of past experience raises a question: Can experience be gained through the work of one's subcontractors or must the construction work be self-performed? Read more.