In Metcalf Co. v. U.S., the Court of Federal Claims bucked established law in its recent decision which essentially rendered the Federal Acquisition Regulations differing site condition clause and the Government’s covenant of good faith and fair dealing unenforceable. The Metcalf decision threatens the balance of rights under those doctrines and creates a broad and amorphous risk for participants in design-build projects and other
similar alternative delivery methods. This case is now on appeal to the U.S. Court of Appeals for the Federal Circuit.
The CLE will address the risk implications on both federal and private projects if the Federal Claims ruling is upheld such as: (1) the need to rethink how to handle projects if an Owner can shift all differing site condition and changes liability to a Design-Builder based on the Design-Builder’s duty to perform an independent site investigation, even when the Court found that the Design-Builder could rely on the Owner’s information for the purposes of bidding; and (2) how the
Metcalf decision fails to follow 100 years of case law precedent by creating a new burden requiring the claimant to establish bad faith in order to establish an Owner breached its implied contract duty of good faith and fair dealing.