02/28/2022

Editor's Notes

A traditional construction contract defines the work to be accomplished and leaves the means and methods of construction to the discretion of the contractor. It is not unusual, however, for a project owner to specify the use of particular equipment it considers necessary to properly accomplish the task. In federal contracting, this is permissible so long as the specified equipment is “minimally sufficient,” mitigating the restraint on competition.

 

The Court of Federal Claims addressed a situation in which an agency stopped specifying minimally sufficient equipment in order to increase bid competition. The agency knew the low bidder intended to use less capable equipment but said nothing. The equipment proved insufficient for the task, and the agency terminated the contract for default. The contractor claimed the agency had breached the contract by withholding superior knowledge.

 

The other case in this issue involved the designation of certain public restrooms adjacent to a job site for the exclusive use of construction personnel, which the project owner continued to maintain. A construction worker slipped and fell in a designated restroom. A New York appeals court was asked if the designated restroom had become part of the job site over which the construction manager had control and responsibility.

 

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