International Construction Law Review
INTRODUCTION
HUMPHREY LLOYD
DOUGLAS S JONES
Readers with very long memories, aficionados of this Review (back numbers are still available from the publishers) and industrious researchers will, or may, recall that in 1987 we had an article on “Foreign Contractor Claims against the United States Government” (1987) 4 ICLR 31. We received a generous offer to bring the subject up to date from its author, Mr John B Tieder, Jnr, of Watt, Tieder, Hoffar and Fitzgerald LLP, McLean, Virginia, which we naturally accepted. He has been joined by two of his partners, Mr Paul A Varela and Mr David B Wonderlick. The title recognises that the position of sub-contractors is now covered: “Foreign Contractor and Sub-contractor Claims against the United States Government” (at page 4). Claims against the US Government are handled outside the ordinary court system by Boards of Contract Appeals (BCA) and also in the US Court of Federal Claims. The same applies for foreign contractors. The authors set out the typical bases for claims by contractors and sub-contractors (including the claims against prime contractors). Since, as the authors point out, claims against the US Government are not significantly different from claims against other sovereign entities, the article has real value as the claims are similar to those in other international contracts, although there is no chance of a claim for the default on the part of Government. In addition, the decisions of the BCA and Court of Federal Claims have established sizable jurisprudence. Nevertheless, foreign law may apply in some situations. The authors emphasise that contractors may perhaps be treated rather more fairly than under some international contracts since contracts are reasonably liberally interpreted and applied. For example, proof of actual knowledge of an event may be sufficient and dispense with the need for formal written notice of it. However, once the contracting officer has given a final decision, strict compliance with notice provisions is required. Claims which are found to be exaggerated are subject to severe penalties.
Now that the dust is settling following the decision of the Singapore Court of Appeal in PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation [2010] SGCA 33, Mr Gerlando Butera, a partner of Nabarro LLP, Singapore, has taken the opportunity to write about “Untangling the Enforcement of DAB Decisions” (at page 36). Mr Butera examines most of what has been written since that decision. He argues that the solution may not be quite as convoluted, as has been suggested, a binding decision requiring payment of money creates a debt which may be enforceable as such. In other words, it is the same as if a certificate had been issued and not paid. On that basis, we suppose that it should be possible for the sanctions of suspension and termination to be available to a contractor. If a contract was truly balanced it would so provide expressly but few standard forms do so since it is not in the interests of employers. However, Mr Butera
The International Construction Law Review [2014
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