Volume: 15, Issue: 5 - 03/15/2017
By Bruce Jervis
Second place bidders frequently look for ways to displace low bidders. The most common tool is a protest that the low bid is not responsive to the solicitation or the low bidder is not responsible. Two California contractors took the challenge to another level and the case went to the state’s highest court. Read more.
A contract payment schedule required the cost of stipulated incidental items to be carried in the stated pay items. A contractor could not treat an incidental item as a separately measured, independent pay item.
A second low bidder cannot sue the low bidder for wrongful interference with the competitive bidding process. The competitive bidding statutes, which do not authorize recovery of monetary damages by disappointed bidders, are adequate to protect the public. Creation of a private cause of action would be ill advised.
Volume: 15, Issue: 4 - 02/28/2017
Individuals involved in civil litigation are entitled to represent themselves, to appear pro se. They are not required to hire a licensed attorney in order to participate in the judicial process. What happens, however, when a party to litigation is a group of individuals or an organized business entity? Can a non-attorney member or proprietor represent the broader entity? Read more.
An indemnification agreement between a contractor and a surety was enforceable. The agreement required the contractor and its individual owners to indemnify the surety against costs and losses incurred on bonds, but did not require indemnification against wrongful acts.
A family group involved in a payment dispute with a material supplier could not designate their non-attorney son to represent them in court. The family was not entitled to relief from the adverse judgment that resulted from their choice.
Volume: 15, Issue: 3 - 02/15/2017
Can a public contract clause bind a contractor even when the clause is not stated or referenced in the contract? The answer is yes, if the clause is considered mandatory. Lower level employees cannot alter the procurement process by accidentally omitting important clauses. Read more.
A common law doctrine exempting public entities from statutes of limitation did not apply to contract claims asserted by a municipality. Public entities enter into contracts in their private capacity, not their sovereign capacity.
Performance and payment bond requirements were incorporated into construction contracts by operation of law. The requirements were binding on the contractor even though the government contracting officer had used commercial item contract forms that made no mention of required bonding.
Volume: 15, Issue: 2 - 01/31/2017
By Bruce Jervis
The enforceability of “pay-if-paid” clauses in subcontracts has been litigated extensively. The clauses are controversial because they purport to shift the risk of project owner nonpayment from the prime contractor, which has a contract with the owner, to subcontractors, which do not. Many feel this is unfair and reflects nothing more than the superior economic leverage of prime contractors over their subs. Read more.