When a construction contract calls for the testing and approval of a material sample, the contractor faces a possible obstacle. The contractor cannot proceed until it has established compliance with the specifications. But, the contractor is not the only party presented with risk in this situation.

In the first case reported this week, a project owner’s engineer became frustrated after a paving contractor’s hot-mix samples failed to meet specifications four times in a row. Based on an unwritten “rule,” the engineer ordered a shutdown of the contractor’s batching plant and a redesign of the mix formula. With fixed plant costs of $27,000 a day, enforcement of this unwritten rule could prove expensive for the owner.

Other cases this week involve a project labor agreement and a subcontractor’s proof of damages for breach of contract. A federal appeals court was asked whether a prime contractor and subcontractor could be held responsible for a lower-tier sub’s failure to make contributions to union benefit trust funds. And, an Ohio court considered whether a subcontractor could recover for a prime contractor’s breach without proving the cost savings realized by the sub when it was relieved of further performance obligations by the breach.