A purchaser of allegedly defective property will quite naturally seek recourse against all involved parties. An obvious target would be a trade subcontractor whose workmanship is called into question. However, a recent Ohio case illustrates the strict limitations on such recovery.

A property purchaser sued a trade subcontractor to the builder-vendor for unworkmanlike performance of the subcontract. The buyer had no contractual relationship with the trade sub. Would the court impose a common-law duty of workmanlike performance on the subcontractor?

The other case in this issue involved a contractor’s voluntary assumption of administrative functions that were assigned to the government under the terms of a construction contract. The contractor assumed the functions in order to expedite delivery of materials to the job site. Would the contractor then assume the increased costs when, through no fault of the contractor, the administrative efforts went awry?

A trade subcontractor to a builder-vendor of property had a contractual obligation to the builder, but the subcontractor had no contract with the eventual buyer of the property and owed the buyer no common-law duty of workmanlike performance.

The U.S. government was entitled to a customs duty exemption on imported construction materials on an overseas project. The contractor assumed responsibility for administering the process of obtaining reimbursement in order to expedite delivery of materials. This voluntary assumption did not, however, relieve the government of the ultimate obligation to obtain the reimbursement to which the government was entitled.

When two companies form a joint venture (JV) for the purpose of performing a construction contract, they share a basic goal—successful completion of the project on a profitable basis. When the JV makes money, both parties prosper. However, a recent case before the U.S. Court of Appeals for the Federal Circuit shows the disastrous results when the JV relationship becomes adversarial.

One JV party accused the other of unilaterally grabbing control of the JV, including its bank account. The aggrieved JV party refused to sign payment invoices, the government refused to issue payments and when the other JV party attempted to appeal the nonpayment, it had no recourse.

The second case in this issue addresses the use of a non-architect’s expert testimony to establish an architect’s professional standard of care. Illinois law does not require testimony from a licensed architect; however, the expert testimony in question did not attempt to establish standard of care, focusing instead on communication and procedure.

The third case involves a contractor’s response to a government “show cause” notice threatening default termination. The government had been concerned the contractor could not complete the work in a timely fashion. The contractor sought to reassure the government by submitting a performance schedule with a completion date after the contract deadline. This did not have the intended result.

One joint venture party cannot certify and submit a claim on behalf of the JV over the objection of the second joint venture party. A claim for unpaid invoices was properly dismissed.

The testimony of a non-architect expert witness was admissible against an architect, but the expert criticized the architect’s performance under an owner-architect agreement without establishing the architect’s professional standard of care.

A tardy contractor, faced with a government “show cause” notice threatening termination for default, responded with a completion schedule showing completion 114 days after the contract deadline. The contractor could not establish excusable delay, and its response to the notice was a repudiation of the contract, justifying termination for default.

One tends to think of “government” in a monolithic sense, but it comprises multiple agencies … at the federal, state and local levels. Each agency awards construction contracts in its individual capacity, which leads to a question: Can one agency’s management of a construction contract cause compensable delay to another agency’s physically interrelated construction contract?

A Texas court was presented with a situation in which a state DOT project was adjacent to, and physically interrelated with, a county highway construction project. The contractor on the county job alleged it had been delayed and disrupted by activities on the state project. Was this “owner-caused” delay?

The other case in this issue involved a state procurement statute that limited bid protest rights to issues where at least 10% of the estimated contract value was called into question. Was this a matter of standing to sue, which is discretionary and can be waived? Or, was the dollar threshold an ironclad jurisdictional requirement?

Delay and disruption to a county highway project was caused by construction activities at an adjacent state DOT highway project. Though the projects were physically interrelated, the contracts were awarded and administered by separate public entities. This was not “owner-caused delay.”

A statutory requirement that a bid protest challenges a matter involving at least 10% of the estimated contract value was jurisdictional and could not be waived. A disappointed bidder that did not meet that threshold simply had no protest rights.