Smith, Currie & Hancock's Federal Government Construction Contracts

Thomas J. Kelleher, Jr., Lead Editor, is Senior Partner with Smith, Currie & Hancock LLP and Editor of Common Sense Construction Law, Third Edition. Thomas E. Abernathy IV, Coeditor, is a Partner with Smith, Currie & Hancock LLP and a past chair, American Bar Association, Section of Public Contract Law. Hubert J. Bell, Jr., Coeditor, is a Partner with Smith, Currie & Hancock LLP and a past chair, American Bar Association, Section of Public Contract Law. Smith, Currie & Hancock LLP, founded in 1965 and with offices in Atlanta, Georgia; Charlotte, North Carolina; Tallahassee and Ft. Lauderdale, Florida; Las Vegas, Nevada; and Washington, D.C., has nationally recognized practices in the areas of construction law, government contracts, and environmental law. The firm represents clients in all fifty states, as well as Mexico, Canada, and South America, Europe, Africa, and Asia.

Foreword xix Preface xxi Introduction xxv Author Biographies xxvi 1 Federal Government Contracts and Commercial Contracts: A Brief Comparison 1 I. Government Construction Contracting Process: An Overview 1 II. Relationship of Commercial and Government Contract Law 7 III. Sources of Federal Laws Affecting Government Construction Contracts 9 IV. Procurement Integrity and Standards of Conduct 18 Appendix 1A: A Brief History of the Disputes Process in Government Contracts 41 2 Authority to Bind the Government, Contract Financing, and Payment 45 I. Authority of Government Employees or Agents 45 II. Availability of Funding 59 III. Contract Payment Procedures 67 IV. Government Setoff/Debt Collection Rights 72 V. Assignments/Novations 73 Appendix 2A: Sample Letter to Contracting Officer Requesting Clarification on the Scope of an Authorized Representative's Authority 77 Appendix 2B: Notification of Potential Changes by a Contracting Officer's Representative or Other Government Representative 78 Appendix 2C: Limitation of Government's Obligation (May 2006) 79 3 Contract Formation 91 I. Basic Principles of Contract Formation 81 II. The Government Procurement Process 85 III. Competing for the Award 87 IV. Bid Guarantees (Bonds) 96 V. Responsive Bids and Proposals 99 VI. The Evaluation Process 103 VII. Late Bids and Proposals 119 VIII. Relief for Contractor Bid/Proposal Mistakes 121 IX. Bid Protests 124 4 Contract Types 143 I. Introduction 143 II. Organization of a Typical Construction Contract 144 III. Project Delivery Categories 144 IV. Indefinite Delivery Contracts 154 V. Pricing Categories 159 VI. Options 167 VII. Project Delivery and Contract-Type Risk Analysis 169 VIII. Building Information Modeling 169 5 Socioeconomic Policies 177 I. Introduction 177 II. Small Business Contracting Programs 178 III. Equal Employment Opportunity and Affirmative Action Programs 198 IV. Buy American Act 200 V. Labor Standards 204 VI. Environmental Laws 212 VII. Employee Safety and the Occupational Safety and Health Act 214 Appendix 5A: SBA Program Requirements for Joint Ventures and Subcontracting 219 6 Government Contract Interpretation 221 I. Importance of Contract Interpretation 221 II. Goal of Contract Interpretation 221 III. Circumstances Surrounding Contract Interpretation 225 IV. Resolving Ambiguities 230 V. Allocation of Risks and Obligations 234 VI. Standard FAR Clauses Affecting Allocation of Risks and Contract Interpretation 244 VII. Interpretation of Subcontracts under Federal Contracts 247 Appendix 6A: Sample Table of FAR Clauses with Flow-down Requirements 251 7 Differing Site Conditions 255 I. Historical Overview 255 II. Federal Government Contract Clause 257 III. Recovery for a Type I Changed Condition 259 IV. Recovery for a Type II Changed Condition 262 V. Other Conditions: Weather and Quantity Variations 265 VI. Factors Affecting Recovery 268 Appendix 7A: Site Investigation Checklist 278 8 Contract Changes 281 I Purpose of the Changes Clause 281 II. FAR Changes Clause 283 III. Authority to Issue Changes 290 IV. Express Changes: Bilateral and Unilateral 295 V. Constructive Changes 299 VI. Cardinal Changes 306 VII. Value Engineering Changes 309 VIII. Prerequisites to Recovery 312 IX. Novations 322 Appendix 8A: Value Engineering-Construction (Sept. 2006) 324 9 Delays, Suspension, and Acceleration 329 I. Types of Delay: Basic Principles 329 II. Causes of Excusable Delay 333 III. Causes of Compensable Delay 336 IV. Scheduling and Delays 341 V. Right to Complete Early 343 VI. Concurrent Delay 345 VII. Suspension of Work 346 VIII. Time Extensions 350 IX. Relationship of Delay Remedies under the Suspension of Work and Changes Clauses 355 X. Acceleration 356 Appendix 9A: Suspension of Work (Apr. 1984) 362 10 Inspection, Acceptance, Commissioning, and Warranties 363 I. FAR