Recovery for Defective Specifications as Constructive and Cardinal Changes

Request Group Quote

Fill out this form and someone from FPS will contact you shortly. You can fill out as much or as little information as you would like. Prefer to talk to us? Call 651.666.2030.

First Name

Last Name

Phone

Organization

Title

Number of Prospective Users

Comments

Submit

Thank You

You will be contacted shortly.

1 hour

As Professor Ralph Nash and Steven Feldman put it:

In some instances, the cumulative effect of hundreds of thousands of changes was relatively minor with regard to the work being performed under the contract, but the administrative impact on the contractor’s management of the project was great. A steady flow of minor changes can totally disrupt the project and force a contractor to hire a large number of administrative employees to handle the paperwork generated by the changes. The result can be a significant loss of efficiency and performance of the work and a considerable increase in administrative costs. Such costs can be difficult to recover in an equitable adjustment, and it is questionable whether the contractor should be held to have agreed to such a major impact on the work under the Changes clause.

In this quote, Nash and Feldman address the number of changes, and the contractor’s work in papering them as a breach (discussing the limitations addressed in Seger v. U.S.). But that observation should apply equally to a significant change in scope where defective specifications fundamentally alter the contractor’s performance or where the change in performance was not contemplated by the parties at the time of contracting. Forcing the contractor to identify design defects, propose solutions, and implement the changes is fundamentally different than simply building the government’s design.

Learning Objectives: This program introduces the entitlement and quantum issues, discussing the key distinctions to consider in addressing entitlement, equitable adjustments, or damages in the event of a cardinal change.

About Our Experts

Greg Bingham

Partner, HKA

Greg is a forensic accounting and quantum expert with over 33 years of experience in the field of business consulting, primarily for Government and Construction Contractors.

Clients have included corporations, partnerships, and individuals; in-house and outside counsel. Greg has consulted with contractors to the U.S. government, including contractors to many different departments – Defense, Energy, State, Housing & Urban Development – as well as the National Aeronautics and Space Administration, Army Corp of Engineers, Department of Veterans Affairs, Agency for International Development, the General Services Administration, National Institute of Health and others. Mr. Bingham’s assistance to clients has included presenting his findings in settlement negotiations, alternate dispute resolution proceedings, depositions, and trials.

Greg has worked on commissions throughout Europe, the Middle East, North and South America. He has experience in a variety of client sectors, including buildings, defense, industrial, infrastructure, oil and gas, power and utilities, and technology.

Greg holds a BS in Electrical Engineering and an MBA. He is an Adjunct Professor at George Washington University where he teaches Pricing and Cost Issues in Government Contracts (GCON 6506), a graduate-level course in the Masters of Science in Government Contracts program.
James Newland

Partner, Dentons US LLP

James Newland is a partner in Dentons US LLP, a licensed architect, and his law practice focuses on major construction and public works projects and includes a mix of non-contentious and contentious matters. He is ranked by Chambers USA which describes him as “very well versed in construction law and construction related issues.” He began practice in 1998.

In his practice, James drafts and negotiates construction contracts and procurement documents and helps clients resolve major complex claims involving construction and design issues on domestic and international projects. He represents national and international contractors and project owners in transactional work, mediation, arbitration and litigation. He has significant experience in vertical construction, power and heavy civil contracting and claims, as well as in design-build, P3, alliance contracting and traditional design-bid build delivery formats. Government construction contracting is a major focus of his work.

Prior to practicing law, James practiced architecture and worked as a project manager on development projects. Given this experience, James is frequently called upon to counsel clients on risk management and allocation, advising on troubled projects during the construction phase, project work-outs and project closeout strategies.

James received a Bachelor of Architecture degree from Virginia Polytechnic Institute and State University and earned his JD from the University of Pittsburgh School of Law.

In-House

Bring Federal Publications Seminars to your location! If you would like to offer this course in-house, please contact us.

Schedule Training

Fill out this form and someone from FPS will contact you shortly. You can fill out as much or as little information as you would like. Prefer to talk to us? Call 888.865.9082.