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Federal Circuit, Citing the Christian Doctrine, Holds That Performance and Payment Bonds Are Required for All Construction Contracts, Even When the Bonding Requirement Is Not Expressly Stated in the Contract

K-Con, Inc. v. Sec'y of the Army, 2018 U.S. App. LEXIS 31196 (Fed. Cir., November 5, 2018)

Author: John H. Conrad

12/27/2018

Read the full post at Constructlaw

Federal Circuit, Citing the Christian Doctrine, Holds That Performance and Payment Bonds Are Required for All Construction Contracts, Even When the Bonding Requirement Is Not Expressly Stated in the Contract

In September 2013 K-Con, Inc. (K-Con) entered into two contracts with the government to supply and construct pre-engineered metal buildings for a laundry facility and a communications equipment shelter. The government issued both contracts using Standard Form 1449, entitled Solicitation/Contract/Order for Commercial Items. The contracts’ terms did not contain any requirement to provide a performance or payment  bond. Nor did they include FAR 52.228-15, which requires performance and payment bonds on construction contracts.

In October 2013 the government directed K-Con to supply performance and payment bonds before a notice to proceed could be issued. K-Con initially refused but ultimately provided the bonds two years later. The contracts were then adjusted to add the cost of the bonds.

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