Public construction contracts at every level of government call for the initial submission of a claim to the public project owner itself for an administrative determination of the merits of the claim. This is a prerequisite to litigating the claim in another forum. Sometimes the contract stipulates a period within which the owner must make a decision on the claim; sometimes not. Even when a deadline is stated, the owner can invoke exceptions. Basically, a standard of reasonableness applies.

On a recent federal construction project, the agency was allowed almost a year to render a decision on a claim. Admittedly, the claim was large and complex. The agency needed to hire a claim consultant to analyze the claim. And the contractor’s lack of diligence hurt its own cause. Nonetheless, a year is a long time to wait for a decision that is merely a prerequisite to the actual prosecution of the claim.

Other cases this week involved the negotiation of a design/procure/construct contract and the right to protest a minority business entity status determination. The negotiations led to a binding agreement for procurement of equipment only, without a commitment to design and construct the building to house the equipment. And, a Maryland agency regulation prohibiting protest of MBE determinations violated state procurement statutes and was therefore invalid.