Construction contracts can be voluminous and complex. Sometimes the various provisions don’t fit together properly. They may even be in conflict. Faced with these ambiguities, courts will resort to “extrinsic evidence” – guidance not found in the language of the contract itself.

In a recent Tennessee case, an early completion incentive bonus clause stipulated a calendar date, but was silent regarding any extension of that date. A separate contract provision called for extending the performance period to the extent the contractor encountered excusable delay. Did the excusable delay provision extend to the early completion bonus deadline? The court was forced to examine extensive correspondence between the state highway department and federal funding sources.

Other cases this week involved a limitation of subcontracting clause and the right to recover payment in quantum meruit. Although a disappointed offeror alleged there was no way an awardee could comply with the subcontracting limitation, there was nothing in the awardee’s proposal that took exception to the requirement. And, payment was recovered even though the claimant performed no work with its own forces.