When to call
The record is as good as you make it.
Most of what determines whether you recover from a federal construction dispute is in writing long before litigation begins. The project record is being written every day — by you, by the government, and by the documents you both sign. Most of it is just good project management. But some of it is not. Some of it is the moment a letter has to be answered, or sent, in a way that protects a claim you may not yet know you have. Those are the moments to call.
- When the government directs performance that is inconsistent with your interpretation of the contract.
- When the specification at issue directs means and methods and the result either cannot be built or will not perform as required.
- When inspection rejects work the contract permits, or insists on correction whose cost is disproportionate to any benefit.
- When a legitimate request for an extension is denied and you are told to meet the current contract completion date.
- When the government requires a method or material that is no longer commercially available.
The earlier you call when issues like these arise, the better the record will be.
Resolving a dispute
The project record determines the merits. Everything else is judgment.
A construction dispute is shaped long before any claim is filed because we are building your case from the project record. The better the record, the better your case will be.
The record informs resolution strategy.
A strong project record informs every strategic choice in the case. It tells us which depositions are worth taking, who must testify, and who need not. When contemporaneous documents establish the key facts, contractor witnesses can focus on context. Government witnesses are then the source for the remaining facts. A good project record reduces the cost of discovery and the burden on contractor personnel — and lets us present more persuasive evidence at trial. But even the strongest record sometimes cannot resolve a case by itself.
The obstacles reshape resolution strategy.
When the standard litigation path stalls, the next move is not more of the same. It is to identify the obstacles preventing resolution. Sometimes, an obstacle is that the contracting officer is convinced the government’s position is meritorious and does not see the flaws in its case. An adversary will not persuade the CO, but a qualified, authoritative neutral may, and make trial unnecessary.
The Bassett matter illustrates the point. Settlement was blocked by the government’s misplaced confidence in its expert’s delay analysis. We proposed an outcome prediction — a non-binding ADR process in which an ASBCA judge gives the parties her assessment of the likely result. The government agreed. The experts presented their delay analyses directly to the judge, who questioned them and then offered her view on how delay should be allocated. We then asked her to remain as facilitator and help the parties work toward settlement. The case resolved that day.
Our trial practice
How we will try your case.
Some cases cannot or should not be settled. They must be tried, and we will do so. These are some of the lessons we’ve learned over years of trying cases. We will apply them trying yours. They’ve worked for us.
- Open aggressively (if you don’t believe in the case, you shouldn’t be here).
- Credibility determinations are made in real time (nobody waits until closing argument).
- Persuade the judge at trial (judges don’t rule from the bench, but they are human).
- Adverse witnesses are the most persuasive (when their witness helps you, it sticks).
- There is no such thing as being too prepared for trial.
How we apply these lessons.
The choices we make are not always visible in the decision. But we relied on the same lesson in both cases — call the adverse witness first, so the judge hears the helpful evidence from the witness himself, not filtered through his own counsel.
Alutiiq Mfg. Contrs., LLC v. United States, 143 Fed. Cl. 689 (2019).
The government terminated our client’s contract for default based on alleged failure to make progress. Nearly all the supporting facts came from a single on-site representative, who relayed them to the out-of-state contracting officer. Our position was default was improper because the information from that key witness was either inaccurate or dishonest.
- We called the on-site representative early in our case, rather than waiting for the government, because the sooner the judge learned he had lied, the better.
- The judge knew immediately the witness lied because he admitted it.
Q. That was a lie
A. Yes, it was.
Alutiiq Mfg. Contrs. v. United States, 143 Fed. Cl. 689, 698 n.1 (2019)
- The judge agreed with our position regarding Lisbon, finding that the witness’s “history of dishonesty further undercut the contracting officer’s ability to form an independent and reasonable belief regarding plaintiff’s ability to complete the contract on time.”
Nippo Corp./Int’l Bridge Corp. v. AMEC Earth & Envtl., Inc., 2013 U.S. Dist. LEXIS 47232 (E.D. Pa. 2013).
A joint venture between Japanese and Guam contractors had a $21 million subcontract to demolish and replace the north runway at Andersen AFB, Guam. The prime contractor had its own technical experts and project staff. Constructive changes involving mix design and placement for both asphalt and concrete, along with delay claims, produced a 71-page liability decision after a five-week bench trial.
- We called the prime contractor’s project manager in our case-in-chief and the court explicitly referenced his admissions and technical opinions as persuasive evidence supporting our client’s position regarding asphalt, sinkhole, and concrete damage and repair claims.
- The court also found the prime contractor’s positions at trial “ambiguous and evasive” — an institutional credibility finding that reinforced our client’s case across multiple issues.
Results
Representative matters.
Differing site conditions / Defective specifications / Andersen AFB
- $6.10M amended judgment — Andersen AFB Guam runway, sub-side joint venture recovery against the prime. Lead trial counsel for the subcontractor joint venture in a five-week non-jury trial before the Hon. Cynthia M. Rufe in the United States District Court for the Eastern District of Pennsylvania, arising from demolition and replacement of the north runway at Andersen Air Force Base, Guam. The court entered findings for the joint venture and against the prime on claims for differing site conditions, defective specifications, change-order recovery, and equitable adjustment, and rejected the prime’s counterclaims for liquidated damages and attorneys’ fees. Amended Judgment Order entered in the amount of $6,096,297.92.
Nippo Corp./Int’l Bridge Corp. JV v. AMEC Earth & Envt’l, Inc., 2013 U.S. Dist. LEXIS 47232 (E.D. Pa. Apr. 1, 2013). - $1.70M trial judgment — controlling Federal Circuit authority. Sole counsel for the Miller Act surety in a five-week bench trial before Senior Judge Robert H. Hodges, Jr., at the United States Court of Federal Claims. The court entered judgment for the surety in the amount of $1,375,420 for impairment of suretyship and reimbursement, and $326,700 for improperly assessed liquidated damages, arising from the government’s failure to enforce FAR-mandated contractor payment certifications on a defaulted Navy construction contract. On cross-appeal at the Federal Circuit, the court of appeals reversed on jurisdictional grounds. The appellate decision is now the controlling Federal Circuit authority on the scope of Tucker Act and Contract Disputes Act jurisdiction over Miller Act surety claims against the United States.
Lumbermens Mut. Cas. Co. v. United States, 90 Fed. Cl. 558 (2009), rev’d, 654 F.3d 1305 (Fed. Cir. 2011).
Termination for default / Conversion to termination for convenience / Buckley AFB
- $4.9M settlement — reported COFC decision converting T4D to T4C. Lead trial counsel for the prime contractor on a paving and pavement-repair contract at Buckley Air Force Base, Aurora, Colorado, after the Department of Defense, National Guard Bureau, terminated the contract for default. Stowell Holcomb, then an associate, served as second chair. Following trial before Senior Judge Loren A. Smith at the United States Court of Federal Claims, the court held that the agency had not satisfied the Lisbon Contractors reasonable-belief standard, that the contracting officer’s FAR 49.402-3(f) factor analysis ignored the contractor’s post-personnel-change performance recovery and the agency’s own asphalt specification problems, and that the follow-on contractor encountered the same problems. Judgment was entered for the contractor and the termination for default was converted to a termination for convenience. The matter then resolved by settlement for $4.9 million.
Alutiiq Mfg. Contractors, LLC v. United States, 143 Fed. Cl. 689 (2019), appeal dismissed, 2019 U.S. App. LEXIS 40908 (Fed. Cir. Oct. 15, 2019).
Miller Act and ASBCA / Bassett Army Hospital / Fort Wainwright
- Recovery exceeding $4 million — two-forum negotiated resolution. Sole counsel for the electrical subcontractor on the Bassett Army Community Hospital Replacement at Fort Wainwright, Alaska, a U.S. Army Corps of Engineers prime contract. Claims included defective specifications and delay and disruption attributable to both the Corps and the prime. Prosecuted a Miller Act suit against the prime and its surety in the United States District Court for the District of Alaska while the sponsored claims proceeded at the Armed Services Board of Contract Appeals. The Miller Act suit resolved by settlement; the ASBCA appeal resolved through joint mediation with the Corps. Total recovery exceeded $4 million.
Defective design specifications / Pass-through sponsorship / Elmendorf AFB
- Sustained ASBCA decision — reported pass-through on a federal medical facility. Sole counsel for the electrical subcontractor on sponsored pass-through appeals at the Armed Services Board of Contract Appeals arising from defective design specifications on a $120 million U.S. Army Corps of Engineers Composite Medical Facility contract at Elmendorf Air Force Base, Anchorage, Alaska. The appeals, prosecuted in the prime contractor’s name under a sponsorship agreement, addressed government-omitted strut mounting details for approximately 2,700 attachment plates on the second-level interstitial building system. Following hearing in Anchorage, the Board sustained the appeals as to entitlement, applying the Molony & Rubien rule that draftsmanship deficiencies the contractor cannot detect through a knowledgeable reading do not fall within the contractor’s risk.
Appeals of M.A. Mortenson Co., ASBCA Nos. 50716, 51241, 51257, 99-1 B.C.A. (CCH) ¶ 30,270 (1999).
Differing site conditions / Defective specifications / Prime claims plus subcontractor pass-throughs
- $1,867,351 recovery — consolidated ASBCA appeals resolved through Board ADR. Counsel of record for the prime contractor on a $20.3 million Air Force fueling-ramp expansion project at the 145th Airlift Wing, North Carolina Air National Guard. Critical-path delay on the MSE retaining wall and 4,000-barrel fuel-tank foundation arose from inadequate bearing capacity, extensive buried construction debris, and alluvial soils requiring rigid inclusions not provided for in the design. Subcontractor claims prosecuted as sponsored pass-throughs in the prime’s name under liquidating agreements; no Miller Act litigation. Prime claims and subcontractor pass-through claims resolved together through Board ADR with a Board judge as mediator.
Appeals of Bodell Construction Co., ASBCA Nos. 63517-ADR, 63850-ADR. Stowell B. Holcomb, counsel of record.