Volume 6 - Number 49 | December 15, 2008 - Construction Claims Advisor

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You are here: Home » Volume 6 - Number 49 | December 15, 2008

Volume 6 - Number 49 | December 15, 2008

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EDITOR'S NOTES | Issue 6-49: Anyone who has passed the first grade knows that 2 + 2 = 4. Likewise, with a little deciphering (and junior high math skills), the following equation also makes sense: (.25) (2) (24) = 12; (12) ($280) = $3,360. But, while we know that if you have two apples and add two more, the answer is clear, how does the latter equation relate to a photo of three concrete barriers in a grassy median? That was one of the questions that lingered in the minds of the ASBCA panel members when they received a written appeal from a contractor working on an Army restoration project. The contractor omitted descriptions that would have helped the board determine if the contractor’s costs for “changed conditions” were valid. Had the contractor opted to include a hearing with its written appeal, the ruling could have gone a different way.

On a bid protest of a state turnpike project, an electrical contractor protested that the project violated the state Separations Act, which mandates separate trade contracts for public building projects. The opinion given by the appeals court contemplated what constitutes a “public building,” but ultimately says the protest was premature because a formal bid solicitation had not yet been issued.

When it comes to settlement negotiations, good business practice dictates that all parties are aware of and on board with the agreement. A contractor made a deal with a disgruntled subcontractor, committing its surety to payment if it defaulted. However, the surety was left out of the discussions. Too many questions remained unanswered for the court to issue a decision and the case was remanded.

It is a rare situation when a construction project does not experience some sort of delay. Whether a delay is caused by late material deliveries, weather, mismanagement, coordination disputes or some other reasons, a delay can wreak havoc on a project. Even when a contract contains a no-damage-for-delay clause, Larry True advises that preparing for a delay claim is in the contractor’s best interest. We conclude this week’s issue with his primer on how to prepare for such a claim.

CLAIM QUANTIFICATION NOT SUPPORTED BY THE WRITTEN RECORD: Missing annotations on cost equations in a written appeal illustrates the pitfalls of relying solely on the written record for a claim appeal. Oral testimony could have cleared up the confusion.

CONTRACTING SCHEME CANNOT BE CHALLENGED BEFORE BID SOLICITATION: A Pennsylvania court tells an electrical contractor that it jumped the gun in its bid protest. A viable protest cannot be filed until a formal bid solicitation has been issued by the procuring agency.

ENFORCEABILITY OF SETTLEMENT AGREEMENT UNCERTAIN: Too many unanswered questions in a disputed settlement agreement convince an appeals court to remand the case back to trial.