Volume: 24, Issue: 11 - June 15, 2026

Editor's Notes - Case Summaries

When a contractor falls behind schedule, it is common for a public project owner to send a “cure notice.” The contractor must show how it will get on the path to timely completion. There is an implicit threat of termination for default, but the government can’t terminate prior to the contractual completion deadline unless the contractor has no reasonable likelihood of timely completion. What happens when a contractor responds to a cure notice with a proposed “revised schedule” that indicates completion after the deadline?

The US Court of Appeals for the Federal Circuit recently ruled that such a response was a breach of contract. Rather than showing how it would achieve timely completion of the work, the contractor repudiated its contractual obligation to do so. There was no evidence of excusable delay, and the government could default the contractor without a showing of no reasonable likelihood. See: Sergent’s Mechanical Systems, Inc. v. United States

The second case in this issue involved a prime contractor’s sponsorship of a subcontractor’s pass-through claim against the federal government. The prime contractor said it had no reason to believe the sub’s claim pricing was incorrect. This did not meet the standard for certifying a sponsored subcontractor claim; however, the defective certification could be corrected. The contractor and subcontractor could proceed with appeal of the government’s denial of the claim. See: Appeal of The Haskell Company

The third case comes from the New Hampshire Supreme Court. A contract stated the change order clause could not be waived by failure to strictly conform to the change order process. There had been a waiver nonetheless—the parties had not just deviated from the process; they had persistently ignored it altogether. See: RJH Builders, LLC v. Thistle

Webinar Report Summary - Schedule Games

Construction schedules are prepared by contractors to plan and manage their work. Schedules can also serves payment measurement vehicles (cost-loaded schedules), for reporting progress and for determining delays and time extensions. To that effect, contractors have been known to manipulate schedules to their advantage, such as putting owner-responsible activities on the critical path so a delay to an owner activity will result in delaying project completion and entitling the contractor to extended overhead costs. In addition, this can also result in masking contractor delays. WPL's annual presentation of Jim Zack's Schedule Games series examines the many ways (45) that schedules can be manipulated and what owners can do to defend against them. Download the free report here.

Tips, Techniques and Tutorials

Importance of Clarity and Specificity
This week’s cases illustrate the importance of being clear and precise when preparing, negotiating and settling change orders. Both owners and contractors
should have a checklist that includes, as a minimum, the following:

• Proposals and scope of work should be explicit and accurately priced. This
  facilitates and expedites acceptance, and agreement, by owners.
• Owners should be immediately advised, in writing, when changes may affect schedule. Time changes should be reflected in signed change orders.
• If disputed items exist, they should be separated out from undisputed issues
  for separate resolution. This facilitates settlement of both disputed and undisputed items, and limits exposure.
• Where possible, actual costs for disputed items should be separately
  tracked.

Numerous disputes cascade into litigation merely because factual issues were not documented or timely addressed.