Surety Bond Quarterly - Winter 2017 - 34

regarding the continued accuracy
of certain historical data provided
in the solicitation and the conditions
encountered by the contractor were
not materially or unforeseeably different from those suggested by the
government, the board found that the
contractor's expectation of specific
conditions based on the solicitation
was unreasonable.
More recently, in March 2017, the
United States Court of Federal Claims
rejected a fuel supplier's claim for
nearly $200,000 in costs incurred due
to alleged changes and breaches by the
government on a contract for the delivery of bulk fuel to airports in the New
York area in the wake of Superstorm
Sandy. The contractor argued that
changes in the delivery method prescribed by the original Invitation for
Bids constituted a cardinal change for
which the contractor was entitled to
compensation. However, the court,
relying on email correspondence
between the parties prior to contract
award, found that the government had
altered the terms of its offer, binding

the contractor to the changed delivery
method. Worse still for the contractor,
due to the shoddy recordkeeping that
precipitated its claim, the government
filed multiple counterclaims alleging
the contractor's claims were fraudulent, threatening a total liability of more
than $200,000. As of this writing, those
claims remain pending.
As these cases show, contracting in
the wake of a natural disaster is fraught
with risks, from escalating cost experiences in uncertain conditions to recordkeeping difficulties under impending
deadlines that may prove costly in
the future. However, these cases also
suggest certain steps that contractors
can take to protect themselves. First,
through the use of price-adjustment
clauses and other risk-sharing provisions in contracts where the scope
of work is impossible to know at the
outset, contractors can mitigate the
likelihood of incurring losses. Second,
by regularly communicating with the
government both before and during
performance, contractors can best
understand the work to be performed

and adapt their approach accordingly.
Finally, by maintaining a comprehensive written record, contractors can
substantiate their own performance
experiences, improving the strength
of any future claims they may need to
file while insulating themselves from
allegations of false, inflated, or fraudulent claims. By proactively addressing
these risk factors, contractors can position themselves to make the most of
the opportunities to come.
●
W. Barron A. Avery is a partner at
BakerHostetler, LLP, and leads the
firm's government contracts practice in
Washington, DC. He can be reached at
bavery@bakerlaw.com or 202.861.1705.
William B. O'Reilly is an associate at the
firm and can be reached at woreilly@
bakerlaw.com or 202.861.1745.
Avery and O'Reilly's government contracts practice includes the representation of contractors in bid protests,
claims litigation, investigations, and
regulatory compliance matters.

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Table of Contents for the Digital Edition of Surety Bond Quarterly - Winter 2017

NASBP Upcoming Meetings & Events
2017–2018 Executive Committee
From the CEO: Looking Backward to Reach Forward
Relationships for the Long Run
Subcontractor Default Insurance: Relevant Considerations for the Surety Claims Professional
Bottom Line Protection with Job Cost Accumulation & Allocation
Inside the AIA’s New Insurance and Bonding Contract Exhibit
The Calm After the Storm: Managing Disaster Response Contracts
Practical Tools to Help Jump-Start Your Company’s Cyber Plan
Index to Advertisers
Surety Bond Quarterly - Winter 2017 - Intro
Surety Bond Quarterly - Winter 2017 - cover1
Surety Bond Quarterly - Winter 2017 - cover2
Surety Bond Quarterly - Winter 2017 - 3
Surety Bond Quarterly - Winter 2017 - 4
Surety Bond Quarterly - Winter 2017 - 5
Surety Bond Quarterly - Winter 2017 - 6
Surety Bond Quarterly - Winter 2017 - 2017–2018 Executive Committee
Surety Bond Quarterly - Winter 2017 - 8
Surety Bond Quarterly - Winter 2017 - From the CEO: Looking Backward to Reach Forward
Surety Bond Quarterly - Winter 2017 - 10
Surety Bond Quarterly - Winter 2017 - Relationships for the Long Run
Surety Bond Quarterly - Winter 2017 - 12
Surety Bond Quarterly - Winter 2017 - 13
Surety Bond Quarterly - Winter 2017 - Subcontractor Default Insurance: Relevant Considerations for the Surety Claims Professional
Surety Bond Quarterly - Winter 2017 - 15
Surety Bond Quarterly - Winter 2017 - 16
Surety Bond Quarterly - Winter 2017 - 17
Surety Bond Quarterly - Winter 2017 - 18
Surety Bond Quarterly - Winter 2017 - 19
Surety Bond Quarterly - Winter 2017 - 20
Surety Bond Quarterly - Winter 2017 - 21
Surety Bond Quarterly - Winter 2017 - 22
Surety Bond Quarterly - Winter 2017 - 23
Surety Bond Quarterly - Winter 2017 - 24
Surety Bond Quarterly - Winter 2017 - 25
Surety Bond Quarterly - Winter 2017 - Bottom Line Protection with Job Cost Accumulation & Allocation
Surety Bond Quarterly - Winter 2017 - 27
Surety Bond Quarterly - Winter 2017 - 28
Surety Bond Quarterly - Winter 2017 - 29
Surety Bond Quarterly - Winter 2017 - Inside the AIA’s New Insurance and Bonding Contract Exhibit
Surety Bond Quarterly - Winter 2017 - 31
Surety Bond Quarterly - Winter 2017 - 32
Surety Bond Quarterly - Winter 2017 - The Calm After the Storm: Managing Disaster Response Contracts
Surety Bond Quarterly - Winter 2017 - 34
Surety Bond Quarterly - Winter 2017 - Practical Tools to Help Jump-Start Your Company’s Cyber Plan
Surety Bond Quarterly - Winter 2017 - 36
Surety Bond Quarterly - Winter 2017 - 37
Surety Bond Quarterly - Winter 2017 - Index to Advertisers
Surety Bond Quarterly - Winter 2017 - cover3
Surety Bond Quarterly - Winter 2017 - cover4
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