04/15/2022

Editor's Notes

When it comes to proving damages from delay, disruption or suspension of work, the best evidence consists of periodic, contemporaneous, as-built schedule updates using network analysis. That is the ideal. Contractors, however, do not always maintain their schedule updates. Is it permissible for a scheduling expert, after the fact, to reconstruct the as-built schedule?

 

The government argued this was an impermissible methodology that produced “a work of fiction.” The actual rule regarding reconstruction of as-built schedules is not that severe. However, the expert’s reliance on undocumented interviews with contractor personnel, as opposed to daily job reports, raised questions.

 

The second case in this issue involved an unpaid subcontractor’s recovery against a public works payment bond. Was the sub allowed to recover the reasonable value of the work it performed? Or was the sub limited to traditional breach of contract damages?

 

The final case addresses the comparative price evaluation of bids. The bid solicitation included an optional additive item. The solicitation also stated that the additive item had to be ignored when determining the low bidder. Did this run afoul of a New York procurement statute mandating contract award to the lowest bidder for the work required?

 

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