Construction Claims and Disputes

Federal construction projects are complex, and disputes are common. Differing site conditions, design defects, government-caused delays, changed work and payment problems can quickly turn a profitable job into a loss. Baker, Cronogue, Tolle & Werfel, LLP represents prime contractors, subcontractors and suppliers on federal construction projects, from the first sign of trouble through claims, appeals and litigation.

When the government changes the work, delays the project or provides defective specifications, the contractor is generally entitled to an equitable adjustment in price and time. We prepare requests for equitable adjustment and certified claims under the Contract Disputes Act for:

• Changes and constructive changes, including directed extra work and overly strict inspection.
• Type I and Type II differing site conditions.
• Government-caused delay, suspension of work and disruption, supported by schedule analysis.
• Acceleration, loss of productivity and extended field and home office overhead.
• Defective plans and specifications under the Spearin doctrine.

If the contracting officer denies a claim or fails to decide it, we pursue appeals before the Armed Services Board of Contract Appeals, the Civilian Board of Contract Appeals and the U.S. Court of Federal Claims. Strict deadlines apply, including 90 days to appeal to a board and 12 months to file at the Court of Federal Claims.

Subcontractors on federal projects cannot file mechanic's liens on government property and usually cannot sue the government directly. Their protection comes from the Miller Act payment bond, which requires timely notice and suit within one year of last furnishing labor or materials. We pursue and defend Miller Act claims, pass-through claims sponsored by the prime contractor, and disputes over pay-when-paid clauses, backcharges, flow-down provisions and subcontract terminations.

We advise contractors facing cure notices, show cause letters and terminations for default, and we work to convert improper default terminations into terminations for convenience so the contractor can recover its costs. We also help contractors prepare termination for convenience settlement proposals and respond to negative CPARS evaluations that could affect future awards.

We advise general contractors, specialty trade subcontractors, design-build teams and material suppliers. Federal construction contracts are administered by agencies such as the U.S. Army Corps of Engineers, NAVFAC, the Department of Veterans Affairs and the General Services Administration, and each has its own procedures and expectations. Understanding how contracting officers evaluate claims helps us build a record that supports a fair settlement and holds up if the dispute goes to a board or court. We also assist with bid protests on construction procurements and with bonding and surety issues that arise when a project goes wrong.

Many construction disputes are won or lost long before a claim is filed. Proper notice letters, contemporaneous documentation, daily logs and an updated schedule are often the difference between full recovery and none. We regularly counsel contractors during performance so that their rights are preserved. If your project is running into delays, changes or payment problems, contact us to discuss your options.