Volume 6 Number 11 | March 17, 2008 - Construction Claims Advisor

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You are here: Home » Volume 6 Number 11 | March 17, 2008

Volume 6 Number 11 | March 17, 2008

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EDITOR'S NOTES - Issue 6-11: "If it ain’t broke, don’t fix it!" The cliché rings true in most situations. In generalized terms, it is the position a court must take when contemplating disputes between parties. It was the stance taken by a state high court in this week’s first case. The dispute, over a clause omission in a contract, led to arguments of intent and past performance. In this situation, the letter of the law prevailed. Quoting a hearing judge, the court ruled, "[I]n the absence of ambiguity, it is not the Court’s responsibility to create confusion where none exists." Although the contract omission may have been a simple oversight, the fact that it was missing from the contract cannot be forgotten or ignored when interpreting the contract.

Continuing with the clichés, "many hands make light work" but in the case of one subcontractor who couldn’t pay its workers, the prime contractor stepped in to help by giving advance progress payments. But, the prime was left holding an empty bag and an incomplete project when the sub defaulted. The prime brought in a replacement to complete the work and the original sub protested. In the end, the prime won out.

On a communication project at a military base, a subcontractor was required to make the worksite area as good as new. Repeated instructions from the prime to the sub that the work was not up to par failed to correct the problems and a court determined that the contractor sufficiently met the requirement to proceed with a termination for default.

And lastly, BIM-enthusiasts are gearing up for WPL Publishing’s fourth audio conference on building information modeling. Experts on the forefront of BIM contracting will explain the advantages of using the technology on a day-to-day basis. After all, it’s all in a day’s work.

SUBSTITUTION OF LISTED SUBCONTRACTOR CAUSED NO HARM: Although a public works contractor replaces a sub on a project before getting official owner approval, no harm is caused by the replacement.

WAGE RATE ADJUSTMENT CLAUSE OMITTED FROM SUBCONTRACT: An omitted contract clause cannot be added posthumously despite an argument that the omission was accidental or that a pattern was established with previous contracts between the parties.

TERMINATED SUB RECEIVED ADEQUATE NOTICE AND OPPORTUNITY TO CURE: An almost-daily volley of communications between a contractor and its sub is sufficient to meet the requirements of notice for deficient work that precedes a termination for default.