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Volume 6 - Number 24 | June 16, 2008

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Recent Issues

  EDITOR'S NOTES | Issue 6-24
Merriam-Webster defines the term “nickel-and-dime” as, “To impair, weaken or defeat piecemeal (as through a series of small incursions or excessive attention to minor details).” The idea of nickel and diming someone is not new. It pervades our lives in many areas—the new airline charges for baggage fees and preferred seat assignments, hotel fees, phone line item charges, loan and bank fees, hospitality services, school fees and fundraisers, and especially legal costs. States have tried to minimize this money-wasting approach to litigation on government projects by requiring claimants to consolidate all claims into a single action. A state high court ruled that despite a waiver of sovereign immunity, a contractor could not file multiple claims in separate actions against a government agency if the claims were all known at the onset of the first action. The waiver only applies to consolidated claims, it said in this week’s first case.

On another government contract, a contractor failed to conduct sufficient research on performance specifications before submitting its bid. When it came time to fulfill the specifications, it realized its costs and procurement timelines were significantly greater than anticipated.

The final case this week covers liability limitations and indirect damages related to engineering services for site preparation work. It also considers legal jurisdiction when the disputing parties cross state lines.
  PUBLIC WORKS CONTRACTOR REQUIRED TO CONSOLIDATE ALL KNOWN CLAIMS
A contractor cannot file sequential claims when litigating or arbitrating claims against a state agency, says the state high court. It must consolidate all known claims into a single, concurrent action.
  PERFORMANCE SPECIFICATION DID NOT PROMISE COMMERCIAL AVAILABILITY
A window requirement on a government contract proves more elusive to procure than the contractor anticipated, resulting in higher costs for the contractor.
  LIMITATION OF LIABILITY CLAUSE ENFORCED IN ENGINEERING AGREEMENT
Contract clauses covering limitation of liability and indirect damages are enforced against a developer seeking $3 million in damages against an engineering firm that performed $8,900 worth of soil testing services.