LATENT DEFECTS ARE TOUGH TO PROVE

Under the of clause of the Federal Acquisition Regulation, the federal government must accept a contractor's work promptly as practicable after completion and inspection. This clause, however, allows the government to direct the contractor to replace or correct nonconforming work at the contractor's own expense prior to acceptance. If the contractor refuses to correct the deficiencies, the government may perform the remedial work itself and charge the costs to the contractors. Also, the government may terminate the contractor's right to proceed with the contract. After accepting the work, the government has limited rights against a contractor for deficient or defective work. Generally, the government must rely solely on contractual warranties to hold the contractor accountable for nonconformities that appear after acceptance. There are exceptions, however. For example, the inspection of construction clause provides that acceptance shall be final and conclusive except for latent defects. However, as demonstrated by the recent case of M.A. Mortenson Co. v. United States, 40 Fed.Cl. 389 (1998), the government has the burden of proving the existence of and damages caused by latent defects in the contractor's work.