Anticipatory repudiation of a construction contract occurs when a contractor indicates the intent to refuse future performance of the contract. Repudiation of a contract is a breach, justifying a termination for default by the project owner. One of the most common forms of repudiation is a threat to cease work unless the owner agrees to a modification of the contract.

In a case reported this week, a contractor and an owner had an intense disagreement regarding the appropriate method of bringing the project into compliance with performance standards in the contract. The contractor wrote that it had exhausted all means at its disposal and had ceased operations until further notice. The owner subsequently terminated the contract for default, justifying the default in part on the contractor's alleged repudiation of the contract. But, did the contractor's comments constitute repudiation?

Other cases reported this week involve the definition of a "responsive" proposal on a negotiated contract and the application of a reciprocal waiver to a separate prime contractor not party to the contract containing the waiver. A project owner's determination of a responsive proposal allows more discretion than the determination of a responsive sealed bid. And the waiver, by its express terms, applied to nonparties to the contract.