Hawthorne Cat has partnered with South Pacific Petroleum Corporation to offer our valued customers on-site fuel delivery services. You tell us where and when to deliver and our trucks will pump fuel into your fleet, equipment, or bulk tanks.
Call 671.649.4249 to schedule our on-site fuel delivery services.
Backyard Buoys will empower Guam’s Southern coastal communities to collect and use ocean data to support their blue economy: maritime activities, food security, and coastal hazard protection.
The buoy is small, about the size of a basketball. The data it collects, such as wave height and direction, will be an asset for those who live, work, and play in and around the ocean.
Scan here to view more information on the Backyard Buoys Website
Scan here to view the Backyard Buoys prototype app
“East Island Tinting made it easy for me when I needed some tint for Meskla, my restaurant. On top of the options that they gave me, they were fast, friendly, informative, and the
of their
is excellent! The best part is that they guarantee their
It was a pleasure doing business with them.”
Peter Duenas Owner
INTERIM PRESIDENT
Desiree Lizama
Guam Contractors’ Association
IMMEDIATE PAST CHAIRMAN
Joe Roberto East Island Tinting
CHAIRMAN
Matthew Hunter Dylan Mechanical Construction Services
VICE-CHAIRMAN
Kathleen David Pacific Rim Constructors
SECRETARY / TREASURER
Soraya Vongjalorn Vertex Guam
CONTRACTOR DIRECTORS:
Dean Bates Black Construction Corporation
Nadia Holm ECC
John Limtiaco Pacific Unlimited
AJ Perez Hawaiian Rock Products
Randolf Salas Proferre
ASSOCIATE DIRECTORS:
Mark Cruz Mid Pac Far East
Jose Garcia First Hawaiian Bank
Geraldine Leon Guerrero
Adztech Advertising and PR
Camilo Lorenzo
Matson Navigation
Guam Contractor’s Association (GCA) in conjunction with Adztech and Public Relations, Inc. publishes the Construction News Bulletin (CNB) monthly. Reproduction of materials appearing in this publication is strictly forbidden without written permission by GCA.
While we always strive for accuracy, we will from time to time overlook mistakes. In order to help us improve the quality and accuracy of this publication, we ask that you take the time to look at the information provided and notify GCA or Adztech of any corrections as needed. Opinions and editorial content of this publication may not necessarily be those of the publisher, production team, staff, GCA members, GCA Board of Directors and advertisers
For more information about advertising in the GCA Construction News Bulletin contact the advertising department at (671) 477-1239/2239 or email at adztech@teleguam.net.
Distributed to GCA members or can be obtained by stopping by the Guam Contractors’ Association office located at 506 Mariner Ave., Barrigada, Guam 96913
To find out more about how you can become a GCA member contact Guam Contractors’ Association at Tel: (671) 647-4840/41 or Email: info@guamcontractors.org www.guamcontractors.org
Postmaster: Send address changes to Guam Contractors’ Association, located at 506 Mariner Ave., Barrigada, Guam 96913
PUBLISHER: Desiree Lizama
PRODUCTION TEAM
LEAD: Geri Leon Guerrero
AD SALES: Alyssa Roces
Josephine Hagen
PRODUCTION: Jason Davis
Alyssa Roces
Christopher “Taco” Rowland
PHOTOGRAPHY:
Alyssa Roces
Christopher “Taco” Rowland
EDITOR: Adztech
CONTRIBUTING WRITERS:
Matthew S. Hunter
Francine Taitague
Rodney “RJ” Ricarte
Patricia “Patti” L. Diego
Nickolas Florez CFCC
GCA STAFF: Francine Taitague
Trevor Cruz
Rosielyn Holgado
Peter Finona
COVER:
GCA teamed up with the Guam Chamber and the Guam Travel & Tourism Association to discuss the issues the GovGuam needs to address with their procurement.
Dear Senator Duenas and members of the 38th Guam Legislature,
In March of 2018, our 34th Guam legislature passed a bill (248-34 (LS)) with 8 Aye's and 7 Nays, with Senator(s) Thomas C. Ada, William M. Castro, Benjamin F. Cruz, James V. Espaldon, Fernando B. Esteves, Tommy Morrison, Louise B. Muna, and Joe S. San Agustin all voting in favor of the bill. That bill eventually was signed into law by then Governor Eddie Calvo and became P.L. No. 34-87, which increased the Gross Receipts (GRT) TAX from 4% to 5% the version that passed through the legislature and became law stipulated that this TAX increase was temporary and had a sunset provision that would only be in effect between April through September of 2018 six (6) months. This temporary increase was intended to fund shortfalls at the Guam Memorial Hospital Authority (GMHA) specifically for its Operations, Modernization, and creating a GMHA Stabilization Fund for the ailing hospital. As well as the Department of Education (DOE) specifically to fund its capital needs, and the General Fund of the Government of Guam to address the Tax base erosion as a direct result of the passage of the TAX cuts and Jobs act of 2017, enacted by the 115th United States Congress and signed into law by then President Donald Trump.
Then in August of 2018, our 34th Guam legislature passed bill (323-34 (COR)), again with 8 Aye's and 7 Nays, with Senator(s) Thomas C. Ada, Benjamin F. Cruz, James V. Espaldon, Tommy Morrison, Louise B. Muna, Telena C. Nelson, and Joe S. San Agustin all voting in favor of the bill. This bill titled the "General Appropriations Act of 2019"
a budget bill, also extended the "Temporary increase" of the Business Privilege Tax (BPT) or Gross Receipts TAX (GRT) indefinitely, effectually eliminating the sunset clause in the previous increase. pulling the proverbial wool over the publics eyes and cementing the phrase by Gideon J. Tucker "No man's life, liberty, or property are safe while the legislature is in session."
Seven (7) Years later, we are still paying the increased BPT/GRT tax rate that again was only supposed to be temporary and only for six (6) months at that. Ask yourselves, did raising the GRT/BPT accomplish what its intent was? Take a look around, have the problems that existed at GMHA at that time gotten better or worse? ls GMHA financially solvent? Do we still have a rundown hospital that fails to meet the needs of the people? Has GMHA been modernized? What is the status of the GMHA stabilization fund? These questions are fairly easy to answer just look at all the news articles and legislative oversight hearings over the past 3 years. The sad fact is GMHA is worse off today than it was in 2018.
What about the Guam Department of Education? Is DOE better off today than it was in 2018 as was the intent of P.L 34-87, with schools that don't meet health and safety standards, as the schools are crumbling right before our eyes? Unfortunately, these questions are also easy to answer, and again the sad answer is a resounding NO! What about the General fund? Surprisingly, we have been
lucky here and boast of a surplus every year!! Something that the majority of the people on this island that you serve are not so lucky to be able to say. While most have to make the difficult choice of do I pay rent this month or do I eat? Or do I pay power this month or do I eat? Do I get my medication this month or do I eat?
The sad fact that has been proven time and time again is that no amount of additional money will fix the problems faced at GMHA and/or DOE or any of the other problems faced by other departments within the government. We just continue to throw good money after bad hoping for different results and I hate to say it but, that is the definition of insanity, trying the same thing over and over expecting different results. The problems will only be fixed when the people at the top are forced to account for their failures and are ultimately replaced and not replaced with political appointees but replaced with actual qualified, experienced and competent professionals. Also evidenced by recent letters written by employees of GMHA. The private sector and the people of Guam deserve better and should not be penalized and shoulder the costs for the failures of the government and its department and agency heads.
In 2018 when then Candidate Lou Leon Guerrero was deep in campaign mode trying to win her bid for Governor of Guam she promised she would lower the Gross Receipts Tax from 5% back to 4% but has since been venomously opposed to any of the several attempts our legislature has tried in doing right by the people and lowering the GRT or BPT so much so that in August of 2019 she said that the "business privilege tax rate of 5% should remain forever" and most recently in the doom and gloom warnings against doing so. Yet proudly boasting over the recent couple of years, the fiscal responsibility of her cabinet in ensuring a multi-million surplus every year and the collection of taxes far in excess of projections.
The primary argument against the aim of lowering the BPT/GRT is; it will not result in lower costs to our people because the business community wont lower prices anyway. While this argument may be true for some businesses this doesn't speak for all of the businesses and even if businesses choose not to lower their prices, they are more likely to do other things with that 1 % such as raise salaries and wages for their employees, hire additional employees, re-invest into their businesses such as renovations, clean-ups, carrying additional stock and inventory, invest in more training for their employees, technology upgrades, expansions and opening new locations, etc. all of these possibilities would help drive more economic activity within the island and drive additional taxes as well, which would offset any perceived loss in tax revenues anyway. The businesses that do actually lower their prices will in turn be more competitive. Any of these possibilities would actually benefit the people of the island you claim to serve.
I have a wild idea, when a business can't afford to operate, it is forced to make cuts to live within its means, it's the same for people as well, when I can't afford to pay my rent or my power bill or whatever else, I am forced to make the hard decisions on what I can and cannot afford to do, do I get a smaller place? Do I not eat? Am I stuck with ichiban, and buttered rice, or can I get that ribeye. If the government can't afford the 1% cut in BPT/GRT thereby finally giving a small crumb of relief to the business community and potentially the People as a whole, all evidence to the contrary. Then the Government is too bloated and needs to be right-sized, needs to tighten their belts so to speak and live within their means.
In conclusion, it is far past the time for promises made to the People of Guam be kept. I highly encourage all the people of Guam to watch how our legislators vote on bill 11-38, and to hold them accountable in the polls during the next election. and I challenge and implore our legislators to do the right thing for the people. Fanhånao ya u n fanlå'la' para I taotao ni' un setbe, I mis mo taotao ni' ha ayek hao para un represesenta siha. (in English) Stand up and fight for the people you serve, the same people who elected you to represent them. Regardless of which political party you are affiliated with, unify, do right by the people and pass bill 11-38 by an overwhelmingly unanimous vote and send a message to the Governor that it is past the time for talk and time for action!
Biba Guahan Sinceramente,
Matthew S. Hunter Chairman Guam Contractors Association
By Francine Taitague Education Director Guam Contractors Association
Construction companies that invest in apprenticeship programs create a foundation for long-term success. Here's why implementing hands-on training should be a priority for your business.
Construction is fundamentally a practical industry where theoretical knowledge alone isn't enough. Apprenticeships provide the immersive learning environment needed to develop essential skills:
• Real-world application of techniques for framing, welding, and equipment operation
• Direct experience with tools and materials in authentic work settings
• Practical expertise development through active engagement
Key Benefits for Your Construction Company
Employee Satisfaction and Retention
• Skilled workers take pride in their growing capabilities
• Hands-on accomplishments boost morale and job satisfaction
• Companies with apprenticeship programs maintain more stable workforces
• Higher retention rates reduce costly turnover and recruitment expenses
Safety and Risk Reduction
• Apprentices learn proper safety protocols through practical application
• Hands-on training improves hazard identification and prevention
• Fewer workplace accidents lead to reduced medical costs and insurance claims
• A safety-conscious culture protects your most valuable asset—your people
Increased Efficiency and Productivity
• Well-trained employees complete tasks more quickly and accurately
• Skilled workers contribute to shorter project timelines
• Efficiency improvements directly impact your bottom line
• Practical knowledge reduces costly mistakes and rework
An apprenticeship program with hands-on learning benefits both employees and construction companies. As an industry, let's prioritize apprenticeships and create a skilled workforce that builds our communities with expertise and pride. If you're a construction company owner, executive, or HR manager, consider implementing an apprenticeship program — it's an investment that pays dividends.
Remember, the foundation of a strong construction company lies in the capable hands of those who build our world, one brick at a time.
The Guam Contractors Association keeps track of hours worked and the education progress of the apprentices in your program. We can guide your company through the whole process. What have you got to lose?
Join the list of companies that have, or are in the process of, creating an apprenticeship program to enhance the skills of its workforce.
I can help you! Interested in learning more?
Please contact me at (671) 647-4841 or francine.taitague@guamcontractors.org.
By Rodney “RJ” Ricarte
FHP Health Center provides a comprehensive range of Occupational Health Services aimed at ensuring the well-being and productivity of GCA member company employees, whether they are in the office or on the job site.
The goal of the FHP Health Center’s Occupational Health Services department is to protect the health and efficiency of your workforce, ultimately contributing to your company’s success.
Here’s an overview of how FHP Occupational Health Services can help keep your employees healthy and safe.
HEALTH CHECK-UPS: a variety of physical examinations including pre-employment, annual check-ups, fitness assessments, driver certifications, vision and dental screenings, military sealift evaluations, pre-deployment evaluations, and exit physicals prioritizing your workforce's health and fitness would be professionally conducted for your employees.
DRUG SCREENINGS: random and pre-employment drug tests, contributing to the safety and health of your workplace to promote your drug-free workplace.
WORKERS’ COMPENSATION: includes managing workers' compensation cases, providing treatment for affected employees, handling necessary reporting, and submitting claims to your Workers’ Compensation Carrier.
RESPIRATORY HEALTH: providing Spirometry, an essential tool in evaluating and maintaining respiratory health. Spirometry is a common type of pulmonary function test that measures how much, and how quickly, you can move air in and out of your lungs. It is often used to diagnose conditions that affect breathing such as asthma or chronic obstructive pulmonary disease (COPD).
IMMUNIZATION SERVICES: special immunizations such as Tetanus, PPD/Tuberculin Skin Tests, Hepatitis A/B Series, Flu Vaccines, and Travelers' immunizations, enhancing your workforce's overall health protection.
HEALTH CERTIFICATION: providing health certificates to meet the requirements of the Department of Public Health and Social Services.
Are you in need of specialized services? FHP’s Occupational Health Services specialists can develop programs that address your company’s specific needs and compliance requirements.
Located at the FHP Annex in Tamuning, FHP Health Center's Occupational Health Services operates from 7:00 a.m. to 3:00 p.m. For more information or inquiries, please call 671-646-5825, press 1. Prioritize the health and safety of your team members by scheduling an appointment.
The well-being of your employees is essential for their productivity and, consequently, the success of your company. So, take a proactive approach to creating a supportive and productive work environment.
A healthy workforce is a happy and efficient one. Stay safe and healthy both in the office and on the job sites.
Rodney “RJ” Ricarte is the TakeCare account executive for GCA. He can be contacted at (671) 487-7121 or rodney.ricarte@takecareasia.com.
Guam’s construction industry has always played a key role in shaping the island’s infrastructure—from roads and schools to energy systems and airports. But behind every successful project is a complicated government procurement process. In a timely and forward-looking effort to bring clarity, cooperation, and change to that process, Guam’s business and government leaders came together for the Government Procurement Summit held on Thursday, June 12, at the Hyatt Regency Guam.
Hosted collaboratively by the Guam Chamber of Commerce, Guam Contractors Association (GCA), and the Guam Travel & Tourism Association, the summit carried the forward-thinking theme: “How Do We Best Deliver Service to Our Community?” The summit aimed to launch a new era of partnership and transparency in how Guam purchases services, especially in construction, where the results directly affect the lives of island residents.
Governor Lourdes A. Leon Guerrero opened the summit by stressing the need to update Guam’s procurement laws, which are based on a 1979 model code. “Our laws and regulations have not met up with the changing challenges,” she said. She announced the creation of a new Procurement Reform Working Group. This team will be tasked with reviewing outdated rules such as small purchase thresholds and bid protest procedures, that often delay important projects.
Speaker of the 38th Guam Legislature, Frank Blas Jr., pledged strong legislative support for procurement reform, emphasizing the importance of community input. "I'm going to be a sponge," he said. "In the end, your voices can help guide us forward on this very important issue."
The summit’s first panel, “What Is Working,” highlighted
successful examples from Guam’s public sector. John M. Benavente P.E., General Manager of the Guam Power Authority (GPA), shared how GPA manages over $400 million in annual procurement, including a 132-megawatt renewable energy project, all within the current lengthy rules. Dr. Mary Okada, President of Guam Community College (GCC), spoke about the power of planning early and blending different funding sources to improve GCC’s campus. Dr. Ricky Hernandez of the A.B. Won Pat International Airport Authority (GIAA) showed how phased project designs helped secure federal grants quickly, such as the $41 million terminal apron upgrade. Michael Conner, Interim Executive Director of the Research Corporation of the University of Guam (RCUOG), offered a contrasting example of flexible procurement and purchasing, with some purchase orders issued in as little as 30 minutes, encouraging other agencies to see their efficiency as a model.
The next panel, “What Is Not Working and Why,” gave the floor to private sector voices. Panelists included Randy Salas (Proferre, Inc.), Boris Hertslet (Guam APEX Accelerator), and attorneys R. Marsil Johnson and Joshua Walsh. They spoke openly about the barriers they face, including slow timelines, unclear rules, and rigid policies that limit innovation. Their message was clear, predictable timelines, clear bid evaluations, and stronger accountability are needed to avoid delays and keep projects on track.
The final panel, “Improving the Process: Practical Solutions and Next Steps,” offered realistic steps to move forward. These included updating small purchase thresholds to match today’s prices, streamlining approval processes, especially for federally funded projects and increasing training for procurement staff. The panel also called for more in-house legal support and early project
planning to avoid costly changes later. These ideas, seen as “quick wins,” are the beginning of deeper changes to create a system that is fair, clear, and built to serve Guam’s future.
During lunch, keynote speaker Public Auditor Benjamin Cruz offered a clear message that Guam already has tools for better procurement. He pointed to the procurement advisory council and mandatory training as paths to efficiency, if properly used. Cruz encouraged agencies to handle bid protests quickly and plan better to avoid delays. His remarks underscored a theme repeated throughout the summit that better planning and using the existing laws and rules can make a real difference.
The Government Procurement Summit marked more than a meeting of minds; it showed a shared will to act. Guam’s private sector is ready, not just to build projects, but to help shape the system that decides how those projects are built. With leadership from both the public and private sectors, Guam has the opportunity to update and refine a procurement system that is modern, fair, and ready for the future.
For GCA members and others who want to share feedback, the Guam Chamber of Commerce invites additional input. Send your thoughts to info@guamchamber.com.gu. These comments will be compiled into a summary report, presented to Speaker Frank Blas Jr., and shared publicly at a future 38th Guam Legislature Information Session.
Your voice matters. Join the conversation to help shape Guam’s procurement future.
GCA May Luncheon
May 21st, 2025
Hilton Guam Resort & Spa
The 38th Guam Legislature is currently debating Bill 11-38, a proposed law that could directly impact the cost of doing business for every contractor and supplier on Guam. Sponsored by Senator Eulogio Shawn Gumataotao, this bill aims to reduce the Business Privilege Tax (BPT) rate from its current 5% back down to 4%, primarily to provide financial relief amidst rising living costs. A public hearing for Bill 11-38 was held on Monday, June 9, 2025, where members of the government and the private sector presented their cases, highlighting crucial considerations for our construction industry
. During the hearing, government officials, including BBMR Director Lestor Carlson, voiced significant
ing these funds are vital for essential public services such as road repairs and other public infrastructure projects—areas directly relevant to our industry.
Conversely, many in the business community, including the Guam Hotel and Restaurant Association (GHRA) and individual small business owners, strongly support the BPT rollback, arguing that tax relief frees up capital for reinvestment, job creation, and economic growth. Joe Roberto, a small business owner, highlighted the direct impact, stating: "This isn't just about saving money for me; it's about having that extra bit to invest in my staff, to give them raises, or to keep my prices fair for our customers. That's how this 1%
enabling members to invest more in equipment, workforce training, and competitive bidding, ultimately stimulating the construction sector, and contributing to the island's economic recovery.
The public hearing, was recessed (paused) on June 9th, to allow for a more thorough review, gather additional data, and ensure all stakeholders have an opportunity to provide testimony and input. It’s an opportunity to build a more comprehensive understanding of the bill's potential impacts before further legislative action.
GCA members, this means the debate is ongoing, so stay tuned for further announcements from the Legislature.
By Patricia “Patti” L. Diego
The Guam Contractors Association (GCA) convened its monthly membership luncheon on May 21, 2025, at the Hilton Guam Resort's Micronesian Ballroom. A packed house of 109 industry leaders, construction professionals, and government officials. Attendees received essential updates, welcomed new member companies, and engaged with a timely featured presentation.
This month's luncheon brought critical updates on the ever-evolving cybersecurity requirements for doing business on Guam, a topic of increasing importance for the construction sector. Adding to the significance of the event, the Honorable Speaker Frank Blas Jr. of the 38th Guam Legislature administered the oath of office to the 2025 GCA Board of Directors.
The winners of the GCA's 37th Golf Scholarship FUN-Raiser were celebrated. Phil Leddy, II, secured the
"Closest to the Pin" award, while Devin Maluwelmeng won the "Longest Drive." "Team Bogeys with Pogis" took 3rd Place, "Team Sakman" earned 2nd Place, and "Team Hawaiian Rock" claimed 1st Place. Congratulations to all the golfers! Stay tuned for upcoming GCA sporting activities, including bowling and softball.
This month's featured guest speaker was Plamin Rabino, CISSP, GICSP+, CMMC, RPA IT/OT and Cybersecurity Operations Manager at Marianas Information Technology Services (MITS). He highlighted the critical importance of cybersecurity and how MITS can support businesses with their cybersecurity needs across Guam and the Pacific region. With over two decades of cybersecurity experience spanning the DoD, federal, public, and education sectors, and holding world-class certifications such as Certified Information Systems Security Professional (CISSP) and Certified Advanced
Security Practitioner (CASP), Mr. Rabino leads a team dedicated to helping small and medium-sized businesses achieve their cybersecurity and information technology strategic goals.
As a reminder from the April 2025 meeting, all motorists and GCA contractors, especially heavy equipment operators and freight transporters, are urged to proceed with caution through "Dead Man's Curve" along Route 1 in Asan. This area continues to be impacted by ongoing Guam Department of Public Works (DPW) transportation projects, which began in April and are scheduled through July 2025.
GCA's monthly luncheons are your go-to for staying sharp on industry news and building strong connections. Join us at future events to meet peers, team up, and help advance and build a stronger future for Guam's construction industry.
By Nickolas Florez CFCC
When contractors submit claims against the government, they often focus on providing a well-supported calculation of damages. While this is crucial, it is insufficient on its own to secure recovery. To successfully pursue a claim, contractors must establish three essential elements: Entitlement, Causation, and Damages. These three components form the Triad of Proof, a well-established legal concept that articulates the elements necessary to support a claim. The absence of any one of these elements will prove fatal to a contractor’s ability to recover.
Figure 1: The triad of proof necessary to support a claim
Entitlement: Establishing the Right to Recover
Entitlement refers to the legal right, afforded by the contract terms, that allows for the claim. Federal contracts are governed by the Federal Acquisition Regulation (FAR) and contain various clauses that allow for contractor claims to be adjudicated. It is noted here that the term claim is used in a very broad sense, to include requests for equitable adjustment (REA). The most common FAR clauses used as a contractor basis for claim are listed below:
• FAR 52.243-4 – Changes: Allows for equitable adjustments when the government modifies the contract scope, the method or manner of performing the work, changes to government furnished material/services or directing acceleration in the performance of work.
• FAR 52.236-2 – Differing Site Conditions: Allows contractors to request an equitable adjustment if they encounter unexpected site conditions or when actual site conditions materially differ from that represented by the contract drawings and/or specifications.
• FAR 52.242-14 – Suspension of Work: Provides relief when the government suspends work in whole or in part, leading to increased costs or time to the contractor. Note, the suspension can be caused by the government’s inaction to respond timely. This is typically called a constructive suspension of work.
• FAR 52.242-15 – Stop Work: Similar to the suspension but with distinct differences including the allowance for profit, which is generally not allowed during a suspension of work.
• FAR 52.249-2 – Termination for Convenience: Allows the government to terminate the contract when it is in the best interest of the government to do so.
• FAR 52.249-10 – Default: Most common use is to allow for non-compensable time extensions to be provided for in the contract, such as a weather-related delay. This clause also allows the government to terminate the contract when the contractor fails to complete the work on time or fails to prosecute the work in a manner that would allow the work to be completed on time.
• FAR 52.233-1 – Disputes: This provides a process for the contractor to submit a “claim” to the government. The term claim, as used in this clause, means “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms”. Under this clause, a claim that does not exceed $100,000 does not have to be certified, whereas claims above $100,000 must be certified.
It is noted here that the list above is not an exhaustive list, but rather some of the most common clauses that afford a contractor the right to seek an equitable adjustment to the contract in terms of money and/or time.
Another important aspect of the clauses above is that each has a notice requirement that requires written notice be provided, within a certain timeframe, in order for the contractor to avail himself of the rights afforded under the respective clause. The importance of notice cannot be understated, as the failure to provide the required notice can be fatal to a contractor’s claim. The chart below identifies the required notice requirements of each FAR clause.
2: FAR Clause Notice Requirements
FAR 52.243-4 – Changes
FAR 52.236-2 – Differing Site Conditions
FAR 52.242-14 – Suspension of Work
30 days from the written or oral change order.
Notice shall be provided "promptly" and before conditions are disturbed.
"20 days from government action or failure to act.
No notice requirement if written suspension."
FAR 52.242-15 – Stop Work
FAR 52.249-2 – Termination for Convenience
FAR 52.249-10 – Default
FAR 52.233-1 – Disputes
30 days from the end of the work stoppage.
1 year from date of termination.
10 days from the beginning of the delay.
6 years from the accrual of the claim.
Each of the clauses above provides for entitlement, but only if the contractor can prove that the clause applies to the relief being sought. Entitlement can sometimes be very straight forward, but other times can be very difficult to establish. An example of each type of claim, straight forward and difficult, is provided below.
Example 1: Straight Forward Entitlement:
You are a contractor on a federal project that contains the changes clause. You are progressing on schedule with a contract completion date of 1 August 2025. You receive an email from the Contracting Officer directing you to accelerate your work to complete 30 days ahead of schedule due to the urgent need for the facility by the customer. You immediately send the Contracting Officer a letter, advising them that you consider the email a written order under the changes clause and will be submitting an REA for the costs associated with this change. The Contracting Officer acknowledged your letter by email and authorized you to proceed with the work with a not to exceed (NTE) amount.
Example 1 Discussion: In this case, entitlement is clearly established under the changes clause. The written direction came from the Contracting Officer for an enumerated change under the clause, you provided the required notice in a timely manner and the Contracting Officer authorized you to proceed with the change.
Unfortunately, the change order scenario above is typically much more complicated in real life and, as such, the entitlement element of proof becomes more difficult. See example 2 below for a more realistic and more common
See clause for more detail.
If not provided promptly, Contracting Officer can extend the notice requirement.
The 20 days relates to accrual of claimed costs. Costs accrued more than 20 days from written notice are disallowed.
Contracting Officer can extend up to final payment
The 1 year is the proposal due date.
Unless extended by the Contracting Officer.
This is the deadline to submit a claim under this clause.
scenario.
You are a contractor on a federal project that contains the changes clause. You believe you are progressing on schedule but have not submitted a schedule update in the last three months. The last three schedules you did submit showed project slippage every month. You believe the government has been responsible for the slippage and have had several conversations with the government quality assurance manager, but you have not provided any written notice of the delays, nor have these delays been recorded in your daily reports. You receive an email from the Contracting Officer’s Representative (COR) asking you to accelerate your work to complete 30 days ahead of the contract completion date due to the urgent need for the facility by the customer. You fail to send the Contracting Officer a letter, advising them that you consider the COR’s email a change order under the changes clause. You did accelerate your work by doubling your crew sizes and working a substantial amount of overtime. Despite your best attempts, continued government interruptions prevented you from finishing 30 days ahead of schedule; however, you were successful in completing the work on the original completion date of 1 August 2025. You submitted an REA to the Contracting Officer 31 days after the work was completed for costs caused by government delays and disruptions and due to the accelerated work effort. The Contracting Officer responded to your REA by denying your right to entitlement under the changes clause for the following reasons.
1. You did accelerate your work efforts, but you did so to
complete your work on schedule, which you were required to do.
2. The COR contends he asked you to accelerate but did not direct you to accelerate. His actions were appropriate given that you were behind schedule when the request was made.
3. Under the changes clause, only the Contracting Officer has the authority to direct changes to the contract and no such order was ever given.
4. You failed to provide the required notice under the changes clause, both when you considered the COR’s request as a change order and when you submitted the REA for costs.
5. You failed to provide the required written notice of government delay or disruption.
Example 2 Discussion: Under this scenario, the contractor’s ability to establish entitlement has been significantly clouded and has become quite complicated. In addition to the clear notice violations, it is questionable that a change order was ever issued. The COR allegedly asked the contractor to accelerate but never actually directed the acceleration. Even if direction was provided, the COR has no authority under the changes clause to direct work, only the Contracting Officer does.
In a real construction environment, establishment of entitlement can be challenging at best. In this example, the necessity of strong project controls, such as regular schedule updates, detailed daily reports, and timely written notice are critical to establish entitlement. In addition, a better understanding of the FAR clause for which entitlement is sought is key. In this case, entitlement under the changes clause is only valid when a change order is directed by the Contracting Officer.
2. Causation: Linking the Government’s Actions to the
Causation is the critical bridge between entitlement and damages. It requires proving that the government’s actions directly caused the financial harm suffered by the contractor. Without clear proof of causation, even a well-documented claim may fail.
Legal standards often require contractors to establish causation by a preponderance of the evidence. This means demonstrating that the government’s conduct was the primary factor leading to the damages. Courts and administrative boards scrutinize causation closely, ensuring that claims are not based on speculation or unrelated events.
In the previous example, the contractor never demonstrated that the delays incurred were the result of government actions or inactions nor did the contractor demonstrate that the delays were not of his own accord. Federal contract specifications require monthly schedule updates with an array of reports and a detailed narrative explaining
project progress. Delays and/or potential project delays are to be documented within the monthly updates as well as an explanation of project slippage – showing the cause and providing mitigation efforts where possible. Delays attributable to the government are to be analyzed with a Time Impact Analysis (TIA). Had the contractor been adhering to the schedule requirements, causation for the delays could be easily addressed. In addition, monthly updates, showing government delay, comply with the written notice requirements of the FAR.
Once entitlement and causation are established, two of the three elements of proof are established, leaving only damages left in the triad to contend with. In example 1, the damage calculation could be very straightforward. The contactor could simply have set up a separate cost code for the overtime work and then tracked the overtime as the work progressed. This, coupled with a daily forced account record, signed by the COR on a daily basis to verify the OT hours spent would be easy to document and suffice to quantify the overtime costs. Other costs associated with the accelerated work effort could also been similarly documented and tracked.
On the second example, calculation of damages could be problematic. Even assuming that the contractor could overcome the entitlement and causation issues, calculation of damages with multiple causes of delay, combined with directed acceleration and disruptive impacts from the government would be difficult to untangle and may require the assistance of an expert. Despite the complexity, the burden in proving damages is that of the contractor. There are, however, methodologies that are available to address acceleration and disruption costs.
The most recognized methodologies available include:
• The Measured Mile Approach – Comparing impacted periods of work to establish a baseline and comparing this to work to a period of unimpacted work.
• Specialty Industry Studies – There are a number of trades (like mechanical and electrical) that have measured the loss of productivity caused by acceleration activities for a small number of projects. These studies have been used successfully as the basis to quantify losses caused by acceleration if there is sufficient similarity between the specific trade and projects studied.
• General Industry Studies – Similar to the specialty industry studies, but based on generalized studies or surveys within the construction industry.
• Modified Total Cost Method – A cost-based method, adjusting total cost calculations for contractor inefficiencies and comparing this to the bid estimate. There are strict criteria when using this method and while its use is often successful, cost-based methodologies for calculating productivity losses are in general the least preferred
It is noted that there are a host of other methodologies available to estimate the impact of acceleration, each with their own sets of pros and cons. The selection of the appropriate methodology would be project specific and would in large part based on the availability of project records.
Despite the level of difficulty, there are many credible options available to quantify even for the most complicated of claims. Failure to provide credible and well-supported damage calculations can prevent proof of damage, the third leg of the triad.
As demonstrated above, contractors are required to establish entitlement, causation and damages in order to be successful in claim recovery. These elements of proof are highly dependent on the availability of contemporaneous detailed project documentation and can be the difference between winning or losing an otherwise solid claim. Without robust documentation, proving the Triad of Proof becomes significantly more challenging.
Taking a quote from my favorite movie, “You and Dawson, you both live in the same dream world. It doesn't matter what I believe. It only matters what I can prove!”
Contractors seeking recovery on government claims must recognize that regardless of how much they believe the government is due and owing them for changes, disruptions, and impacts incurred on the project, submission of a claim requires solid proof in order to prevail. The proof is always hidden in the project record, if it exists at all, emphasizing the need for strong project controls. A successful claim requires a well-supported argument for entitlement, a clear causal link, and accurate damage calculations. By understanding and applying the Triad of Proof, contractors can strengthen their claims and improve their chances of recovery.
About the Author:
Nickolas Florez is a Certified Forensic Claims Consultant and former Contracting Officer with both NAVFAC & USACE with over 35 years in the construction industry. He can be reached at Nick@constructioncsi.com or Ph 808-224-0770.
ABC recommends every contractor take all precautions in the hiring process to verify each potential employee is eligible to work legally in the United States, including using the E-Verify system. ABC’s goal is to work with the administration and Congress to create a market-based merit visa system that allows people who want to contribute to society and work legally in the construction industry to do so. There is no place in our country for lawbreakers here to cause harm, and ABC opposes violence, coercion and intimidation of every kind. ABC supports the portion of the administration’s immigration strategy that focuses on lawbreakers.
Following the laws of supply and demand, mass deportations could constrain the availability of labor, which could stifle the ability of the industry to build the construction projects demanded by the marketplace. In other words, the supply of labor may not meet the demand, which could drive up costs, or consumer demand would adjust. And if the worker supply is constrained, employers would most likely adjust their employee value proposition to enhance their position in the marketplace. This is an important reason why we need a market-based merit visa system.
Refer to the following resources from ABC and ABC general counsel Littler Mendelson for more information on immigration policy and enforcement
actions.
• Littler Lounge: Raids, Records and Red Flags—Inside Immigration Enforcement1
• An ICE Q&A With Answers to Your Top 25 Questions2
• An Immigration Compliance and Enforcement Checklist That Outlines Key Areas That May Require Your Attention and Action3
• PowerPoint Presentation: Learn About President Trump’s Actions on Immigration and DEI and How To Be Proactive in Compliance Efforts4
• Trump Administration Day 1 Immigration Agenda: How Are Employers Impacted?5
• The First 100 Days: Increased Immigration Compliance and Enforcement (Podcast)6
ABC believes in protections for TPS recipients, many of whom have been members of the U.S. construction industry workforce for years. Currently, it is estimated that between 70,000 and 100,000 individuals work in the construction industry through both TPS and DACA.
Once an immigrant is granted TPS, they must re-register during each re-registration period to maintain TPS benefits. This applies to all TPS beneficiaries, including those who were initially granted by the U.S. Citizenship and Immigration Services, an immigration judge or the Board of
Immigration Appeals. Follow the instructions here7 to apply for re-registration.
The following alert has been posted on the TPS website8: On May 19, 2025, the U.S. Supreme Court, in a convincing 8-1 decision, granted the government’s emergency stay of Judge Edward Chen’s order. See National TPS Alliance, et al., v. Kristi Noem et al., No. 3:25-cv-01766 (N.D. Cal. Mar. 31, 2025). Previously, on Feb. 3, 2025, Secretary of Homeland Security Kristi Noem’s vacatur9 of the Jan. 17, 2025, notice that extended a TPS designation for Venezuela was published in the Federal Register, and on Feb. 5, 2025, the secretary’s decision to terminate10 TPS under the 2023 designation for Venezuela was published. Based on the Supreme Court’s May 19 order, the erroneous March 31, 2025, district court order in case No. 3:25-cv-1766 is stayed pending the disposition of the government’s appeal in the U.S. Court of Appeals for the Ninth Circuit. Further updates regarding TPS Venezuela will be posted on the TPS website11. Separately, TPS under the 2021 designation for Venezuela remains in effect through Sept. 10, 2025. Learn more12
To learn more, read an analysis provided by Littler, US Supreme Court Allows Recission of Temporary Protected Status for Venezuelans13.
On Feb. 20, Secretary Noem partially vacated the July 1, 2024, notice14 that extended and redesignated Haiti for TPS. The announcement amends the period of extension and redesignation of Haiti for TPS from 18 months to 12 months, with a new end date of Aug. 3, 2025, and makes a corresponding change to the initial regis-
By Patricia “Patti” L. Diego
tration period for new applicants under the redesignation, which will now remain in effect through Aug. 3, 2025. For additional information, please see the Federal Register Notice15
TPS has also issued alerts for Afghanistan16 and South Sudan17
Visit the TPS webpage for status alerts18.
ABC members are encouraged to reach out to counsel with any questions regarding the recent immigration actions.
1. https://www.littler.com/news-analysis/podcast/littler-lounge-raids-records-and-red-flags-inside-immigration-enforcement?utm_source=vuture&utm_medium=email&utm_campaign=news%20%26%20analysis%20-%20 may%202025
2. https://www.littler.com/sites/default/files/documents/immigration_ice_qanda.pdf?wjf5yr97cfo
3. https://www.littler.com/sites/default/files/documents/immigration_ice_checklist_0.pdf?r6e80tkd3qn
4. https://www.abc.org/academy
5. https://www.littler.com/news-analysis/asap/trump-administration-day-1-immigration-agenda-how-are-employers-impacted
6. https://www.littler.com/news-analysis/podcast/first-100-days-increased-immigration-compliance-and-enforcement
7. https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-south-sudan
8. https://www.uscis.gov/humanitarian/temporary-protected-status
9. https://www.federalregister.gov/documents/2025/02/03/2025-02183/vacatur-of-2025-temporary-protected-status-decision-for-venezuela 10. https://www.federalregister.gov/documents/2025/02/05/2025-02294/termination-of-the-october-3-2023-designation-of-venezuela-for-temporary-protected-status 11. https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-haiti 12. https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-venezuela 13. https://www.littler.com/news-analysis/asap/supreme-court-allows-recission-temporary-protected-status-venezuelans 14. https://www.federalregister.gov/documents/2024/07/01/2024-14247/extension-and-redesignation-of-haiti-for-temporary-protected-status 15. https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-haiti 16. https://www.federalregister.gov/documents/2025/02/24/2025-02970/partial-vacatur-of-2024-temporary-protected-status-decision-for-haiti 17. https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-afghanistan 18. https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-south-sudan 19. https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-south-sudan
In a significant victory for permitting reform, the U.S. Supreme Court on May 29 issued an opinion in the case Seven County Infrastructure Coalition v. Eagle County, Colorado, establishing that federal environmental reviews must be reasonable in scope.
This decision will help ensure that federal agencies properly consider important environmental protections without causing unnecessary delays and increased costs for critical infrastructure projects.
ABC played an important role in this outcome by joining industry partners in filing a Sept. 4, 2024, amicus brief in support of properly focused environmental reviews under the National Environmental Policy Act.
In the case, the court considered whether NEPA requires that agencies consider environmental impacts beyond the immediate effects of their regulatory decision.
The Supreme Court’s opinion, in alignment with ABC’s amicus brief,
ruled that, under NEPA, the Surface Transportation Board was not required to consider distant environmental effects in approving construction of a new rail line.
The decision directed courts to give “substantial deference” to federal agency determinations regarding which information must be included in environmental reviews and stated that NEPA does not require agencies to consider the impact of activities and projects “separate in time or place” from the project before the
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