Defect and Delay Claims/Government Contract Claims

Claims of defects and delays in contract performance of private construction contracts are some of the more contentious and commonly litigated claims.

Defects as well as delays in performance give rise to contract default issues.  Analysis and knowledge of contract language and legal principles governing contract performance of construction projects is paramount in effectively litigating claims.  Specifically, review and evaluation of the certain project issues including the following is necessary for determining legal strategy in litigating delay claims:

• change orders
• plans and specifications
• coordination of trades
• scheduling and time sequence of work
• unforeseen or preexisting conditions
• costs for accelerating materials or labor
• pay requests and payment

Two jurisdictional bases exist for asserting contract claims against the United States.  First, a statute known as the Tucker Act waives sovereign immunity for any claims based upon an “express or implied contract with the United States.”  Second, the Contract Disputes Act, 41 U.S.C. Sections 601-613, sets forth specific procedures for prosecuting claims against the Government for breach of contract.

The dispute resolution process begins not in any court of law or arbitration/hearing panel, but within the procedures for contract administration.  If the contractor believes the Government has breached the contract or that it is entitled to relief under the terms of the contract, the contractor must submit a written claim against the Government.  The written claim is delivered to an official known as the Contracting Officer.  The Contracting Officer is appointed by the Government to manage the contract on the Government’s behalf.  The Contracting Officer is usually an official of the specific Government agency responsible for the contract.  Each agency sets the procedures for selection and qualifications of a Contracting Officer.

A “claim” is defined as a “written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract …”  The claim must contain the necessary detail for evaluation by the Government, as well as justification for recovery pursuant to the terms of the contract. The contractor must also demand recovery of a sum certain against the Government with documentation supporting the amount demanded.  The written claim must also request that the Contracting Officer issue an official decision in response to the claim.

State and local governments also have specific rules and laws governing the claims process that must be careful adhered to.

If you or your company is involved in a construction dispute involving allegations or claims of delay in performance, contact the law firm of Henrichsen Law Group, P.L.L.C. for a complete legal review and analysis.