11/15/2021

Editor's Notes

A common disagreement between project owners and contractors is the extent to which the owner warranted or guaranteed something affecting the work. The matter may involve physical site conditions, sequencing and scheduling, access to the site, or anything else affecting the contractor’s performance. When does a statement or indication in the contract documents become a promise?

 

The Court of Federal Claims recently addressed a contract statement that the contractor “may” dispose of excess soil in a suitable on-base disposal site. Did the government promise to make such a facility available? Or did the permissive “may” stop short of creating a government obligation?

 

The second case in this issue involved a project owner’s issuance of additive change orders after the substantial completion deadline had passed. Did the owner waive the right to withhold liquidated damages for late completion? Or could the contractor still be liable for failure to meet the extended completion deadline?

 

The third case is a disappointed bidder’s challenge to a contract award after the award of the contract. Should the court decline to issue what would be a purely advisory opinion? Or did the public interest in interpretation of the procurement statutes justify such an opinion?

 

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