Volume: 24, Issue: 15 - 08/15/2026
Language in contracts and statutes is usually interpreted according to ordinary or common usage. Courts regularly cite a dictionary meaning. Some terminology, however, gains a specialized, technical meaning within a particular trade, industry, or profession. Such terms are terms of art and are interpreted in accordance with their specialized use.
The Minnesota Supreme Court recently interpreted the word termination as used in a statute of limitations governing the construction of improvements to real property. The term does not refer to the conclusion of physical work. It is a term of art within the construction industry and construction contracts. Termination refers to the conclusion of a contractual relationship, not the status of physical work.
The second case in this issue involves an alleged defective specification. A contractor argued the specified materials would hinder obtaining the required warranty for the roofing system and contended that the problem excused its failure to perform the work in accordance with the contract schedule.
The third case addresses the choice of state law governing a performance bond claim. The bonded project had a determinative location. The domicile of the parties to the construction contract and the location where the contract was created were not determinative.
The word termination, as used in the construction industry and construction contracts, refers to the end of a contractual relationship, not the conclusion of physical construction work.
A defaulted contractor failed to show that the government’s specifications were defective. They also failed to link issues with those specs to the contractor’s tardy performance.
A one-year claim limitation provision in a performance bond was enforceable under Virginia law, even though the bonded subcontract for the Virginia-based project was executed in Maryland between two Maryland companies.
Volume: 24, Issue: 14 - 07/31/2026
Fragmentary networks, or fragnets, are an isolated section of a project schedule affected by a specific event, such as a change or delay. They can be inserted into a critical path method schedule for the entire project. Fragnets have two uses: to track the impact of an actual event and to model or test how contemplated changes will affect the planned work.
A project owner recently conflated the two uses of fragnets. The owner contended the fragnet updates indicated the actual critical path of the work. In fact, the contractor had been modeling a contemplated change in the sequence of work. That contemplated change was abandoned as impracticable. The schedule’s critical path never changed.
The other case in this issue involves a second low bidder’s attempt to displace the low bidder. The protester argued that the low bid’s omission of certain information rendered that bid nonresponsive. Unfortunately for the protester, its bid had omitted the same information.
A fragmentary network is a CPM modeling tool that can be used to hypothesize regarding the impact of a specific event. It does not necessarily reflect what is occurring on the ground and, in itself, does not alter the project's critical path.
A second low bidder committed the same bid deficiency that motivated its protest against the low bid. It therefore suffered no prejudice and could not maintain a protest based on bid responsiveness.
Volume: 24, Issue: 13 - 07/15/2026
Physical conditions beneath the Earth's surface can be difficult to predict. Project owners retain a geotechnical consultant to perform soil test borings and provide the resulting boring logs to prospective bidders. But cost and restricted access limit the number and location of the borings. How much may a bidder infer from borings performed in a different section of the project? And to what extent can surface conditions alert bidders to possible problems?
The Federal Circuit recently addressed these issues on a government canal restoration project. The contractor’s inferences and assumptions relied on the boring logs from a different section of the project, but depressions in the surface should have alerted the contractor to subsidence in the area.
The second case in this issue involves a project owner’s refusal to pay for work performed by a subcontractor. The subcontractor completed the work with the owner’s knowledge and encouragement. The Arizona Supreme Court said it would be unjust for the owner to benefit from this work and pay no one for it.
The third case addresses the severity of disciplinary action against a wayward architect. The Nebraska Supreme Court said the falsification of continuing education documents warranted revoking the architect’s license for five years.
A contractor relied on soil test boring logs from other areas of the work site when it was not reasonable to do so. The contractor could not draw conclusions about site conditions from a contract provision that had been deleted prior to bid submittal.
A property owner allegedly received improvements performed by a subcontractor and paid no one for the work. The Arizona Supreme Court said that even in the absence of owner misconduct, the owner could be liable to the subcontractor for unjust enrichment. The lack of contractual privity did not insulate the owner.
