In today’s public sector, construction contracts are often for renovation work, which can create interface delays not found in new construction projects. Federal and state freedom-of-information laws are an overlooked tool for contractors facing delays with ongoing contracts.
These laws can provide paper and electronic documents concerning the causes of such delays and their disposition during the course of the work.
There are drawbacks in using such resources. For example, some documents are exempted from availability by the freedom-of-information statutes (e.g., deliberative process and non-final determination documents of a public agency), which are more restrictive than discovery in litigation or arbitration.
There is also the time and cost of wading through a multitude of writings to find a solitary kernel of gold. And then sometimes there is the obstacle of an overzealous government official seeking to limit such documents’ availability beyond that contemplated under the applicable statute.
However, this author has found that the use of freedom-of-information statutes at the federal, state and municipal levels is often a worthwhile undertaking for a contractor delayed by causes not of its own making.
Here are some illustrative examples from actual cases successfully prosecuted, largely based on obtained freedom-of-information documents.
A Superfund Project
On a federal Superfund environmental remediation project, a delay occurred in backfilling operations of a large area, related to specified compaction equipment, which appeared outdated and not suitable for the intended tasks. A dispute arose as to how best the compaction was to be performed.
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