Substantial completion is a significant milestone in a construction project. The contractor is no longer subject to liquidated damages for late completion. And, there may be a partial release of the retainage, pending final completion and project close-out.

The determination of substantial completion is usually assigned, under the terms of the construction contract, to an agent of the owner – typically the project architect or engineer. Unfortunately for contractors, they have little leverage in obtaining a timely certificate of substantial completion.

This was illustrated in a recent case in which a contractor was not allowed to pursue a suit against the project engineer for the costs incurred as a result of an allegedly slow certification of substantial completion. The Wyoming Supreme Court said the engineer served as the agent of the project owner and owed a duty only to the owner – not the contractor.

Other cases this week involved performance bond rights and the need to submit a complete initial proposal. A project owner lost its rights against the contractor’s performance bond when it failed to comply with the procedures for declaring a default and making a demand against the surety. And, a low cost proposal was properly rejected because of incomplete technical information.