David Morrill

1 hour ago, C Culham said:

No sir.   The Government asserted a "claim" pursuant to the warranty clause.  For sake of discussion I will believe David that the government was wrong to assert such a claim.   Therefore the government can not prove its claim and owes David money.  As promoted by the FAR at 33.2 "the Government’s policy is to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. Reasonable efforts should be made to resolve controversies prior to the submission of a claim."  If the government denies said money to David, David then has the ability to assert a claim against the government for the money.

Not spot on but I encourage a read of the following.  Make it easy on yourself....fast forward to page 56 and after a read there fast forward to page 86.

https://www.cbca.gov/files/decisions/2019/ZISCHKAU_12-19-19_2953, 2954, 2955, 3596, 4175, 4377, 5006__SUFFOLK_CONSTRUCTION_COMPANY,_INC. (Decision).pdf

The fact pattern is close to the case quoted above - I have directed our personnel to gather the information needed for ownership determination if we intend to seek a remedy or not, and then proceed accordingly.  The materiality and final review of the facts (and evidence) will determine our approach.   We will use the CDA approach.

A great thank you all!!!

37 minutes ago, ji20874 said:

Joel,

If the OP wants to submit a REA, and you are encouraging that approach, what contract clause will allow for an equitable adjustment in this circumstance?  

Because the root cause was a defect in the work of other contractors, was not discovered until after the project was complete, and verified by Government personnel, I would use FAR 52.236-2 - differing site conditions.   But the point about a claim vs an REA is a valid one and will ultimately be driven by the facts, including the timeline, contract status, and how material the claim/rea would be.

I apologize - I was unaware of rule 17.  I went back and looked at the case law that you posted, Joel, and it confirmed what my position was.

In short, it was confirmed that the reported leaking had nothing to do with the roof membrane installed, but it took many hours to identify the actual source.   The client agreed with the evidence we provided.  As we had to mobilize a crew to the site, there are costs that we may consider submitting as an REA.   Your case law supported that position.  As for if we submit an REA or not, it will come down to the final cost of the site visit and customer relations.  If the cost is minor, we may just eat it.   

Thank you all again.

The warranty provision is the standard one for construction, FAR 52.246-21 and does have the disputes cllause.  Further, the roof has been accepted.

Good morning,

We were wondering what others have experienced when a client attempts to claim against a contract's warranty provision for defects that have nothing to do with the work performed, nor the work disturbed.

In our case, we were hired to replace a large roof on a building.  Subsequent to such work, we were called twice to resolve two separate apparent leaks.   We remobilized personnel to the site and carefully examined the work as well as the leaks.  It was determined in both cases that the leaks were the result of the roof mounted HVAC systems leaking (this was not in our scope) and, in fact, the water did not come from the roof at all.    Our efforts included identifying the area affected, cleaning the area, and identifying but not disturbing the offending pipes.

Although it is our understanding that the repairs needed to the HVAC system was then performed by the Client's contractor, we are wondering how others would handle any subsequent visits for warranty work claims when, in fact, the work was performed properly and there was no defect to be repaired?  I believe that after verification that the warranty provision does not apply, that this would be a basis for an REA.  However, is there a better practice to follow?

Thank you in advance.