Contractor Wins in Federal Court of Appeals
Kegler Brown Construction Newsletter April 1, 2014
The Federal Court of Appeals in Washington, D.C., on February 11, 2014, ruled in favor of Metcalf – a Hawaii design-build contractor – and re-established that the doctrine of good faith and fair dealing applies to the government with respect to federal construction contracts. The government was unable to shift the risk of differing site conditions by placing disclaimers about soils reports being made for "preliminary information only" in the Request for Proposal and telling bidders to investigate the site. Metcalf Construction v. United States, 2013-5041 (Fed. Cir. Feb. 11, 2014). Amicus briefs in support of the contractor's position were filed by AGC, ABC and the Design-Build Institute.
Ohio has similar cases both: (1) upholding the government's obligation of good faith and fair dealing [J&H v. OSFC, 2013-Ohio-3827]; and (2) stating that a differing site condition clause in the contract trumps any disclaimer or limiting language in soils reports made available to bidders [Cent. Ohio JVS v. Peterson (1998), 129 Ohio App.3d 58]. We successfully tried these cases against public authorities and prevailed at both trial and on appeal for our contractor clients.