If a project owner specifies the use of a proprietary product, such as a particular brand and model, the contractor may find itself dealing with a sole-source supplier. If that supplier proves unable or unwilling to deliver the product in a timely manner, who is responsible for the resulting delay? The project owner who mandated the product or the contractor who has contracted with the supplier?

A California court recently grappled with this issue. The contract in question, like most public works contracts, allowed the contractor to propose substitute products that were “equal” to the specified proprietary product. The court therefore concluded this was not a sole-source specification and the contractor – not the project owner – was responsible for delay caused by late delivery. The appellate court did not question, however, a trial court ruling that the owner bears the risk of late delivery if a specification calls for a sole-source product.

Other cases this week involved the in-house performance of public construction work and a statutory limitation on suing for payment. Public project owners in Florida can perform work with their own forces only after a public hearing to determine whether that is in the best
interest of the taxpayers. And, the statutory limitation period did not start to run until the contractor’s administrative claim remedies had expired.