September 3, 2007 | Vol. 5 No. 35

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Volume 5 - Number 35 | September 3, 2007

EDITOR'S NOTES
Three weeks ago, the Advisor reported a case in which a contractor in California could not recover lost profits after it was wrongly terminated from a motel project. This week, we report on another California court that took a different approach to the same question—here, the contractor could recover its prospective losses because the owner knew that the contractor’s bonding capacity would be impaired.

Also this week, what happens when a government agency’s contract says one thing and its contracting officer verbally says something that contradicts the contract? In this case, the verbal instructions may prevail.

Finally, we take a look at the ins and outs of recovering attorney fees. This ASBCA appeal offers reasons why the prevailing party may not be able to recover attorney fees.

CONTRACTOR ALLOWED TO RECOVER FOR IMPAIRED BONDING CAPACITY
Under limited circumstances, a wrongfully terminated contractor may recover lost profits on prospective contracts because of impaired bonding capacity, rules a California appeals court.

CONTRACTING OFFICER MAY HAVE RATIFIED ACTIONS OF SUBORDINATE
When a government agency’s preconstruction project instructions diverge from the contract language, confusion ensues. The question that arises is this: Do the instructions supersede the contract? In this case, the answer is perhaps.

CONTRACTOR WAS “PREVAILING PARTY” BUT ATTORNEY FEES DENIED
Winning “prevailing party” status may not be enough to recover attorney fees. “Substantial justification” on the part of the losing party may come into play when determining fee payout.

THELEN REID GETS TOP HONORS IN "BEST LAWYERS" LIST
Here’s a look at recent industry happenings.

SHOP DRAWINGS AND SUBMITTALS - LEGAL AND ENGINEERING PERSPECTIVES
Nonconforming shop drawings create trouble for everyone - from prime contractors to subcontractors ... architects to engineers ... and EVERYONE in between. But you CAN minimize your exposure - IF you know your way around shop drawing submittal and review.

To help you stay in control, and out of trouble, Construction Claims Advisor has teamed up with attorneys Robert Epstein and EJCDC Counsel Hugh Anderson along with engineer Jim Brown, PE, of Malcolm Pirnie Engineers to steer your operations clear of any controversy. Introducing Shop Drawings and Submittals – Legal AND Engineering Perspectives.

Join us on Wednesday, Sept. 26, 2007 from 1:00-2:30 pm Eastern Time - Click here to learn more.
Click here for a conference brochure.