07/20/2020

Editor's Notes

If the owner of a private construction project wants a particular brand and model of equipment, the owner simply specifies that product. This is usually not possible on public works projects. Open competition laws require consideration of functionally “equal” products. This can lead to disputes.

 

A Pennsylvania public works contract said the engineering design was based on use of a particular brand of equipment, although two other named brands would be considered as equals. The contractor proposed, and the owner approved, the use of an alternative brand. Prior to acceptance, testing determined that the project design was incompatible with the alternative product. Under the terms of the contract, the contractor was responsible for the costly reconfiguration and replacement.
 
The second case in this issue involved contractor recovery of unabsorbed overhead during a government suspension of work of an uncertain duration. The government did not need to expressly direct the contractor to standby in order for the contractor to show it had been forced into a standby position. And, the performance of insubstantial amounts of replacement work did not preclude contractor recovery.
 
The final case addressed a lower-tier supplier’s entitlement under the Texas Prompt Payment Act. A joint check arrangement did not shift ultimate payment responsibility from the prime contractor to the project owner, so the payment obligation was not dependent on the supplier’s date of delivery to the job site.
 

 

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