Issue	Case Name	File date	Court	Case No.	Judge (or Author)	Abstract
1-1	Appeals of Kilgallon Construction Co., Inc.	Sep 30, 2003	ASBCA	52582, 52583D	Discus	The ASBCA ruled the plans’ and specifications’ description of “hard crust” material reasonably led contractor to expect to be able to crush the material for use as fill.  During the trial, the contractor was able to show the actual material encountered was not hard crust.
1-1	CEMS, Inc. v. United States	Nov 05, 2003	United States Court of Federal Claims	99-951C, 00-437C, 00438C, 00-439C	Horn	On a Federal Highway Administration bike path project, the Court of Federal Claims awarded a contractor extra costs resulting from improper inspection, which breached the government’s implied duty to cooperate. Although the contractor was awarded only 25%  of its total claim, the court recognized the concept of "unanticipated mobilization" costs as well as declaring that the government project engineer, by conduct, had actual authority to bind the government.
1-2	John B. Conomos, Inc. v. Sun Company, Inc. (R&M)	Aug 22, 2003	Pennsylvania Superior Court	01213WDA02 PA Super 310	Lally-Green	An Pennsylvania appeals court nailed a Sun Company refinery project for breach of contract due to bad faith inspection on an industrial painting contract. In addition to liberal contractual damages, the episode cost Sun over $80,000 in punitive damages, the episode cost Sun over $80,000 in punitive damages, interest and attorney fees pursuant to Pennsylvania’s Contractor and Subcontractor Payment Act, enacted to protect contractors from slow-paying owners and subcontractors from slow paying general contractors.
1-2	Pittsburgh Construction Company v. Paul Griffith and Saundra Griffith	Oct 06, 2003	Pennsylvania Superior Court	00796WDA02, 00797WDA02, 00798WDA02 PA Super 374	Kelly	A homeowner was determined to be in breach of contract for withholding the last two draws on construction of a new home delivered four months late and with alleged defects. The enterprising attorney for the contractor proved that one who lives in glass houses shouldn’t throw stones, successfully undermining the owner’s expert, another homebuilder, with examples from the expert’s own product that contradicted the expert’s testimony. Additionally, the attorney accomplished this with photographs withheld from discovery but which were nevertheless admitted into evidence by the trial court.
1-2	Corning Construction Corp. v. Department of Treasury	Oct 29, 2003	GSBCA	16127-TD	Hyatt	On a roofing contract to cover up the money at the Bureau of Engraving and Printing's main building in Washington, DC, the General Services Administration's Board of Contract Appeals ruled that a subcontractor's scope qualification contained in its propos
1-2	Construction Litigation Reporter - November 2003	Digest	NA	NA	NA	In this month’s lead article, Charles S. LiMandri, Esq., discusses mold claims, insurance coverage and exclusions. The article focuses on cases from California, which apply an efficient proximate cause analysis to place responsibility. Included in this issue are ten(10) case summaries, including topics such as declaration that a Dispute Resolution Board (DRB) was biased, an architect was enjoined in an injury liability suit and two cases where total cost recovery was disallowed (one against a contractor and one against an owner).
1-3	Abatement Contracting Corporation v. U.S.	Oct 06, 2003	U.S. Court of Federal Claims	97-770 C	Merow	This case involves a contractor’s futile efforts to compel the government to apply a unit price to what amounted to be either a gross underestimate of the original scope or at best, the government’s desire to have more work performed but at a renegotiated price.
1-3	P.R. Burke Corporation v. U.S.	Nov 25, 2003	U.S. Court of Federal Claims	96-323C and 96-445C	Lettow	On a sewage treatment facilities improvement contract, a scope change reducing the construction site area to be cleared and graded would not necessarily result in a reduction in the contract dollar amount, where the area reduction is also a constriction of the mobilization area around the construction site. The equitable adjustment of increased time and/or payment for the contractor is an issue of fact for trial, the U.S. Court of Federal Claims rules.
1-4	Sehulster Tunnels/Pre-Con v. Traylor Bros.,/ Obayashi Corp.	Dec 09, 2003	California Supreme Court	S120345	Benke	The Supreme Court of California on December 9, 2003 denied the appeal, as well as a request to “depublish” the decision. In the court of appeals ruling, the tunnel liner supplier successfully argued the dispute review board (DRB) was biased and not a precedent to litigation, prevailing on extra costs and attorney fees for design changes by the general contractor.
1-4	Swinerton Builders v. GSA	Dec 09, 2003	GSBCA	16249	Neill	GSBCA 16249 December 9, 2003 Motion for a stipulated judgment in the amount of $8.8 million plus interest was reached to settle Swinerton’s claim for $20,907,112 on the Evo A. DeConcini U.S. Courthouse & Federal Building, Tucson, Arizona, (contract GS-09P-97-KTC-0008) for extra work previously denied by GSA.
1-4	Wilma Miller, dba Double Diamond Construction v. Mills Construction, Inc.; Van Tol Surety Company, Inc.	Dec 18, 2003	United States Court of Appeals for the Eighth Circuit	691438	Lay	Mills, a general contractor in Brookings, South Dakota, contracted with the city of Brookings to construct the Brookings AgriPlex, including an arena with a clear span of 286 feet long by 209 feet wide. Mills obtained the prefabricated steel for the building from American Buildings Company (ABC) and hired Double Diamond to complete the arena by June 30, 1998. Numerous problems with the steel, including missing pieces, twisted pieces and incorrect lengths brought Double Diamond to a stopping point on May 12, 1998, with 80% of the framing work complete.
1-4	Standard Concrete Products Inc. v. General Truck Drivers, Office, Food and Warehouse Union, Local 952 United States Court of Appeals for the Ninth Circuit	Dec 18, 2003	Ninth Circuit Court of Appeals	01-57256 & 01-57257	Pregerson	The Ninth Circuit overturned California Central District Court’s decision that a no-strike clause waived the right to take part in a sympathy strike. The Court also overturned the ruling that because the two striking locals belonged to the same union, the strike was not technically a sympathy strike. The two local unions were covered under different collective bargaining agreements (CBAs).
1-5	Contractor Assumption on USDA Task Order Costs $90,000	Dec 18, 2003	Jacobs Facilities	AGBCA No. 2003-172-ADR	Joseph A. Vergilio	A contractor submitted four claims totaling $97,000 to recover “out-of-scope work” at the Beltsville Human Nutrition Research Center in Beltsville, MD. This included: 1) $20,938 for processing RFIs in excess of the quantity agreed, 2) $58,797 for reviewing and processing of submittals in excess of the quantity agreed, 3) $10,671 for preparing and providing electronic drawings for a general contractor in a useable format, and 4) $6,375.97 (costs plus profit) in revising the project interior finish schedule. In an accelerated ADR processing with a binding, non-appealable determination, the judge awarded Jacobs $6,202.08. Since the opinion did not include an explanation, we contacted the USDA to learn more.
1-5	US Ex Rel. Edwin P. Harrison v. Westinghouse Savannah River Company	Dec 19, 2006	United States Court of Appeals for the Fourth Circuit	02-2020 & 02-2092	Shedd	This case involves a government training program contract and a number of side issues regarding what fees the Qui Tam “relator” could recover regarding a false statement Westinghouse made about an organizational conflict of interest (OCI) relationship.  Although not a construction contract, two important issues are worth contractor attention.
1-5	Ward General Insurance Services, Inc. The Employers Fire Insurance Company	Dec. 17, 2003	Ca. Court of Appeals, Fourth Appellate District, Division Three	G031624	Ikola	Despite policy endorsements such as “Valuable Papers and Records Coverage”: “Electronic Equipment and Software Coverage”; “Electronic Data Processing Coverage”; “and “Business Income Coverage”; a commercial insurance policy did not cover expenses to restore data, loss of business income and loss of productivity when no direct physical loss was incurred.
2-1	Bid in Fax Machine Memory Does Not Meet Deadline	Dec 09, 2003	Comptroller General of the United States	B-292830	Gamboa	A bidder submitting a bid only minutes before the deadline assumes the risks the bid might arrive late and not accepted. Heavy fax machine traffic, improper clock synchronization and the fax machine running out of paper are among these risks. Amigo contends that since the bid was in the fax machine’s memory prior to the deadline, it was under control of the government and thus required to be accepted. The Comptroller General disagreed and denied the protest.
2-1	Overstreet Electric Co., Inc, Plaintiff v. The United States of America, Defendant and Wallace L. Boldt General Contractor, Inc. Defendant-Intervenor	Dec 19, 2003	United States Court of Federal Claims	03-2510C	Block	Overstreet was the lowest price bidder on a “competitive best value, single award acquisition utilizing Performance Price Trade-off (PPT) procedures” negotiated method of procurement to repair or replace the main base switching station at Randolph AFB.
2-1	In the Matter of: The Paintworks, Inc.	Dec 23, 2003	Comptroller Generla of the United States	B-292982; B-292982.2	Gamboa	This protest involved a solicitation for a paint booth facility at Lajes Field, Azores, Portugal. Award was to be made to the firm offering the best value to the agency in terms of technical capability (rated on a pass/fail basis), and a tradeoff between past/present performance and price (where performance and price were of equal importance). For performance evaluation, offerors were to provide information about their relevant experience within the past five years.
2-1	Emma Corporation, v. Inglewood Unified school District	Jan 06, 2004	In the Court of Appeal of the State of California, Second Appellate District, Division One.	B163469	Ortega	Emma Corporation’s low bid for an elementary school project for the Inglewood Unified School District, CA omitted a $786,000 line item for plumbing and site utility work. Upon learning of the error, Emma submitted a timely bid withdrawal letter which, however, did not fully comply with the technical details of the Public Contract’s Code requirements for bid withdrawals.
2-2	Sea Crest Construction Corp., Construction Corp.v. United States of America, Defendant	Jan 08, 2004	United States Court of Federal Claims	02-261C	Hodges	Sea Crest submitted a successful bid design and construct 118 family housing units at the United Stages Military Academy. Following acceptance of award and issuance of a notice to proceed, Sea Crest submitted a revised layout drawing which the government rejected as not meeting the original specifications.
2-2	PSE Consulting, Inc. v. Frank Mercede and Sons, Inc.	Jan 13, 2004	Connecticut Supreme Court	SC 16839	Katz	Mercede, a general contractor hired to construct an assisted living facility in Stamford, Connecticut, furnished the owner of the project a labor and materials payment bond. After the steel subcontractor filed for bankruptcy, PSE, the steel erection sub-subcontractor, filed suit against Mercede and the surety for the balance of the original contract plus reimbursement for extras.
2-2	Pennslvania  National Mutual Casulty Insurance Company  v. City of Pine Bluff	Jan 15, 2004	United States Court of Appeals for the Eighth Circuit	02-3600, 02-3646, and 02-3735	Wollman	The City of Pine Bluff settled and released a general contractor it had terminated from an ice storm clean-up project. Prior to the settlement, the surety that provided the performance and payment bond had requested the city not release any funds.
2-3	Martin Clyde Corely and Dianna Skaggs Corely v. Rivertown, Inc.	Jan 02, 2004	Court of Appeal of the State of Florida, Fifth District	5D02-3302	Sawaya	In a lien foreclosure case, it was not the amount of award that determined the prevailing party for the purpose of awarding attorney's fees.
2-3	PromontoryEnterprises, Inc. v. Southern Engineering & Contracting, Inc.	Jan 02, 2004	Court of Appeal of the State of Florida, Fifth District	5D03-495	Sawaya	In this Florida Court of Appeal opinion, the Court ruled that an unlicensed contractor can file for arbitration of a breach of contract action.
2-3	Lighting & Power Services, Inc v. Wayne M. Roberts, dba Robinson Constructors, Inc.; USF&G	Jan 13, 2004	United States Court of Appeals for the Eighth Circuit		Hansen	Total cost claim decisions are always of interest to attorneys and contractors alike. As most everyone in the construction industry is aware, courts are reluctant to employ the total cost method of damage calculation. This article looks at differences in
2-3	A-1 Duran Roofing, Inc. v. Select Contracting, Inc. & Great American Insur.	Jan 21, 2004	Court of Appeal of the State of Florida, Fourth District	4D02-2176	Stevenson	In an arbitration where the party that was awarded substantially the total value of its claim and the arbitrator issued an award stating neither party prevailed, but did not provide an explanation of the basis of the award, the trial court’s correctly den
2-4	Hat Creek Construction, Inc.	Jan 08, 2004	AGBCA	2002-137-1	Westbrook	On a road construction project for the Redding, California office of the US Department of Agriculture Forest Service (FS), Hat Creek Construction (Hat Creek) claimed where the contract documents designated a borrow pit as PIT LOCATION RIPRAP and PIT RIPRA
2-4	Airport Industrial Park, Inc. d/b/a P.E.C. Contracting Engineers v. The United States	Jan 20, 2004	United States Court of Federal Claims	02-0177C	Hewitt	When the surety became insolvent, the contractor on a Corps of Engineers project did not take steps to obtain a payment bond. The contractor was terminated for default. Its multiple defenses, including its assertion that the reinsurance covered both performance and payment bonds, was insufficient to overturn the termination.
2-5	Fireman's Fund Insurance Company v. Sparks Construction, Inc.	Jan 08, 2004	Court of Appeal of the State of California-Fourth Appellate District	E033453	Richli	In this case involving $430K damages resulting from a leaking toilet due to a defective part, the defendants were unsuccessful in dismissing the case as being filed outside the statute of limitations.
2-5	National Housing Building Corporation v. Acordia of Virgina Ins. Agency, Inc.	Jan 16, 2004	Supreme Court of Virginia	30269	Agee	In this case, the Supreme Court of Virginia ruled the builder's risk insurance policy provision to cover remediation expenses necessary to "protect Covered Property from further damage" does not apply to damages from design defect where there was no cover
2-5	Norris Lozano and Kandace Lozano v. Miles Schlesinger	Jan 21, 2004	Court of Appeal of the State of Oregon	9910-11535; A113569	Landau	In Oregon, the Court of Appeal ruled where there was no substantial completion because the owner built his own house, the statute of limitations was never triggered.
2-5	Robin Hicks, v. The Superior Court of Los Angeles County, Kaufman and Broad Home Corporation	Jan 22, 2004	Court of Appeal of the State of California	B167843	Purluss	In a significant case in California, the Court of Appeal ruled that a contractor may expressly disclaim implied warranties.
2-6	Gordon R. England, Secretary of the Navy, v. The Swanson Group, Inc.	Jan 20, 2004	United States Court of Appeals for the Federal Circuit	03-1051	Schall	This case involves a contract for security services, but is instructive to construction contractors appealing contracting officer decisions pursuant to the Contract Disputes Act. In this case, the Western Division of the Naval Facilities Engineering Command (NAVFAC) terminated the Swanson Group, Inc. (Swanson) for default, which was later converted to a termination for convenience.
2-6	Ajax Building Corporation, f.u.b.o. St. Paul Fire & Marine Insurance Company v. Harford Fire Insurance Company	Jan 27, 2004	United States Court of Appeals for the Eleventh Circuit	03-11106	Fay	The US Court of Appeals reversed a district court ruling that the 'builder's risk' insurance policy covered damage to a crane used by a concrete subcontractor.
2-6	United States, Ex Rel. A. Amir Ali, Under 31 U.S.C Section 3729, Qui Tam Relator, v. Daniel, Mann, Johnson & Mendenhall	Feb 20, 2004	United States Court of Appeals for the Ninth Circuit	02-56432	Fletcher	In a Qui Tam action under the False Claims Act (essentially, a whistler blower suit), a US Court of Appeals rejected a district court’s summary judgment that held Daniel, Mann, Johnson & Mendenhall (DMJM) was not subject to liability because DMJM was acting as an agent of the state when it allegedly submitted false claims.
2-7	U.S. v. Reitmeyer, et al.	Feb 04, 2004	United States Court of Apeals for the Tenth Circuit		Brorby	The 10th Circuit Court of Appeals upheld a District Court's dismissal of a Major Fraud Act indictment for failure to file within the seven year statute of limitations. Meetings to further the cause of the original fraud did not extend the fraud for the purpose of the statute of limitations.
2-7	RMP Rentals, v. Metroplex	Feb 12, 2004	Supreme Court of Arkansas	03-569	Dickey	The Arkansas Supreme Court issued a questionable ruling that left meaningless the contract’s provision that a Louisiana court would be the sole and exclusive forum for any civil suit arising out of the contract.
2-7	Riverdale Development Company, LLC v. Ruffin Building Systems, Inc.	Feb 12, 2004	Supreme Court of Arkansas	03-244	Glaze	If the issues involving a party are decided in an arbitration hearing even though that party is not named as an arbitration participant, then the party can rely on the decision, and cannot be the subject of separate ligitation for the same issues.
2-8	Appeals of PK Contractors, Inc.	Jan 20, 2004	ASBCA	53576, 53577	Conroy	How many hours does it take two attorneys to sift through every page of 86 boxes of documents? (The answer provided below.) In this case, the judges carefully evaluated compelling arguments from both parties on whether documents inadvertently provided to the other side lose their attorney-client protection status. Ultimately, the circumstances of the documents for the particular case are determinate, and in this case, the contractor prevailed.
2-8	Redondo Construction Corp., v. Puerto Rico Highway and Transportation Authority	Feb 06, 2004	United States Court of Appeals for the First Circuit	03-1587	Torruela
2-8	Appeal of Rio Construction Corp.	Feb 11, 2004	ASBCA	54273	Conroy	Rio Construction (Rio) was low bidder at $10,555,240 on a flood control project for the US Army Corp of Engineers (Corp) in Barceloneta, Puerto Rico. Included were three bid items for fill requirements totaling 888 cubic meters. The three items represente
2-8	Appeals of Perini Corp.	Jun 30, 2004	ASBCA	51160, 51573	James	This case involves two appeals on an Embassy contract in Venezuela for the Department of State. The first is Perini’s appeal of the denied delay claim for $8,335,913 and 517 calendar days contract time extension. The second is Perini’s appeal of the gover
2-9	Appeals of Valenzuela Engineering, Inc.	Jan 29, 2004	ASBCA	53608, 53936	Dicus	In this case, the Armed Services Board of Contract Appeals (“ASBCA”) combined two appeals (arising from the same contract) and issued a single decision denying both appeals. In the first case, “the Splicing Issue,” Valenzuela Engineering, Inc. (“Valenzuel
2-9	Centron Industries Inc.	Feb 05, 2004	ASBCA	52581	Freeman	The Armed Services Board of Contract Appeals (“ASBCA”) denied an application for attorneys’ fees and expenses under the Equal Access to Justice Act (“EAJA”) because the opposing party proved that its position in the prior appeal was substantially justifie
2-9	Application Under the Equal Access to Justice Act	Feb 05, 2004	ASBCA	52581	Freeman	Normally, when parties to a suit notify the judges of a settlement, the case is dismissed and nothing further is required in statements from the judges. In this unusual decision by the Agriculture Board of Contract Appeals (AGBCA) in response to a withdra
2-9	Don Dwyer Development Co.	Feb 10, 2004	Agriculture Board of Contract Appeals	2003-162-10	Pollack	The District Court of Puerto Rico denied the Puerto Rico Highway and Transportation Authority’s claim of Eleventh Amendment immunity as an arm of the state. The First Circuit affirmed the District Court’s decision, paving the way for contractor to file su
2-10	Valmont Energy Steel, Inc. v. Commercial Union Insurance Co.	Feb 10, 2004	United States Court of Appeals for the fifth Circuit	03-40650	DeMoss	This case involves an appeal from a federal district court decision requiring two insurance companies to cover damages that the insured contractor incurred due to defective steel. The Court of Appeals reversed the district court’s decision, finding the in
2-10	AJP Construction, Inc. v. Secretary of Labor	Feb 13, 2004	United States Court of Appeals for the District of Colombia Courts	03-1073	Tatel	AJP appeals a decision of the Occupational Safety and Health Review Commission affirming citations for violations related to scaffolding safety. The Court of Appeals, applying an abuse of discretion standard of review, affirmed the Commission’s decision,
2-10	Martens v. MCL Construction Corp.	Feb 27, 2004	Illinois Court of Appeals	1-02-1557	Smith	The Circuit Court of Cook County dismissed the claims of a subcontractor’s employee against the prime contractor and construction manager for a personal injury sustained at the worksite. The appellate court affirmed the Circuit Court’s decision, rejecting common exceptions to the "oversight" rule and the plaintiff's assertion that the beam that caused the accident was a defective "product."
2-11	Coral Construction, Inc. v. City and County of San Francisco	Feb 24, 2004	Court of Appeal of the State of California First Appellant District, Division Four	A101842	Rivera	The California Court of Appeals reversed the San Francisco County Superior Court’s decision to deny a contractor standing to sue the City for giving preference to women and minority-owned businesses in bids for City contracts.
2-11	Garamendi v. Golden Eagle Insurance Co.	Mar 04, 2004	Court of Appeal of the State of California First Appellant District, Division Three	A097435	Pollak	Following a hearing and rehearing, a bankrupt insurance company was forced to pay in a defects suit filed by the homeowners.
2-11	Gene Duke Builders, Inc. v. Abilene Housing Authority	Mar 05, 2004	Supreme Court of Texas	03-0710	Per Curiam	A Texas contractor persevered in having its appeal considered due to an exeption in the Rules of Civil Procedure.
2-12	Foster Wheeler Energy Corporation v. LSP Equipment	Feb 25, 2004	Appellant Court of Illinois, Second District	2-03-0963	Byrne	The Appellate Court of Illinois affirmed the Circuit Court of Kendall County, Illinois decision which refused to retroactively apply a state statute that voids choice law provisions in construction contracts.
2-12	J.C. Equipment Corporation v. Secretary of the Navy	Mar 05, 2004	United States Court of Appeals for the Federal Circuit	02-1472	Friedman	A contractor appealed from two decisions comprising almost 50 separate claims for recovery, the overwhelming majority of which the Armed Services Board of Contract Appeals denied. The Federal Circuit affirmed the Board’s decisions.
2-12	New Orleans Assets, L.L.C. v. Carl E. Woodward	Mar 12, 2004	United States Court of Appeals for the Fourth Circuit	03-30286	Benavides	This case involves an appeal from the United States District Court for the Eastern District of Louisiana. The District Court had denied the claim of a building owner against the Louisiana Guaranty Association, the successor to the builder’s original prope
2-12	Matter of Burney & Burney Construction Company, Inc.	Mar 19, 2004	Comptroller Generla of the United States	B-292458.2		In this painting contract, the Department of the Army rejected the low bidder where the bid included overstated prices for some line items. The agency determined that, due to uncertainty in estimated quantities, the bid posed risk that the government woul
2-13	Johnson v. Wattenbarger	Mar 22, 2004	United States Court of Appeals for the Seventh Circuit		Easterbrook	The District Court for the Northern District of Illinois dismissed a contractor's claim against the buyer, partially for lack of jurisdiction and partially on the merits. The Seventh Circuit kindly informed the District Court that it was wrong for combini
2-13	Empire Energy Management Systems, Inc. Secretary of the Air Force	Mar 24, 2004	United States Court of Appeals for the Federal Circuit	03-1277	Dyk	An Air Force contractor believed that its work site was contaminated and refused to work without further investigation and EPA approval. After a series of delays, extensions, and communications between the Air Force, the contractor, and the EPA, the Air F
2-13	Assicurazioni Generali S.P.A., v. Black & Veatch Corporation	Mar 26, 2004	United States Court of Appeals for the Eighth Circuit	03-1431	Colloton	An insurer was forced to pay Black & Veatch $38 Million for the efforts it took to minimize delay costs after a typhoon destroyed major project equipment. The Court relied on the clear language of the contract and an unfortunate failure on the insurer's p
2-14	Heritage Village Homeowners Association Inc. v. General Investors	Mar 11, 2004	Colorado Court of Appeals	02CA098	Marquez	In a construction defects case, defendants, a developer, contractor and sales organization that sold sixty-three houses in a townhome community, were required to pay damages of $3,618,000 for water intrusion and structural defects. The trial court trebled
2-14	Lid Electric, Inc. v. IBEW & EJAB	Mar 29, 2004	United States Court of Appeals for the Seventh Circuit	03-3767 & 03-3769	Easterbrook	IBEW drug testing requirement cannot violate bargaining agreements made with other unions.
2-14	Superior Gunite v. Mitzel	Mar 30, 2004	Court of Appeal of the State of California-Second Appellate District-Division Five	B158824	Mosk	A sub-subcontractor sued a prime contractor for breach of contract and negligence based on its own claims against the prime, as well as the claims the sub had assigned to the sub-sub (for it to pursue against the prime). The trial court awarded over $400,
2-15	USA v. Government of the Virgin Islands	Apr 02, 2004	United States Court of Appeals for the Third Circuit	03-1727	Becker	After 20 years, countless court hearings, and a number of failed consent decrees, the Virgin Islands Government (VGI), in response to violations of the Clean Water Act, declared a state of emergency and lifted contracting regulations. The VGI negotiated a
2-15	M.A. Mortenson v. Acting Secretary of the Army	Apr 07, 2004	US Court of Appeals for the Federal Circuit	03-1276	Meyer	After installation of manual balancing dampers on an Army contract, Mortenson sought confirmation from the government that the job was done correctly. Subsequently, additional dampers were required to be installed and Mortenson was unsuccessful in convinc
2-15	Reata Construction Corp. v. City of Dallas					The Court of Appeals for the Fifth District of Texas reversed a trial court's decision and held that a city, such as Dallas, waives its governmental immunity from lawsuit by intervening in a lawsuit to assert claims for affirmative relief.
2-15	Three Palms Pointe, Inc. v. State Farm Fire & Casulty, Co					The district court ordered State Farm Fire and Casualty, Co. to pay Three Palms Pointe, Inc., a condominium association, insurance proceeds for the costs of relocating residents while the condo was undergoing structural repairs for damage. The appeals cou
2-16	Duke/Flour Daniel v. Hawkeye Funding, Limited Partnership	Feb 26, 2004	Suprem Court of New Hampshire	2003-173	Nadeau	A joint venture sued for money it believed it was owed under a contract to build a powerplant and asked the court to grant it a lien against the powerplant under New Hampshire's mechanic Lien statute. The trial court originally granted the lien, but after
2-16	McMonigle Excavating Concrete, Inc. v. Danny Riley	Mar 29, 2004	In the Court of Appelas of Ohio (Twelth Appellant District, Warren County)	CA2003-07-075	Walsh	After performing concrete work that homeowners refused to pay for, the contractor sued. The homeowners counterclaimed, arguing that the contractor did not perform in a workmanlike manner, as required by the contract. The trial court agreed, and awarded th
2-16	Senaca Valley, Inc. v. Village of Caldwell	Mar 30, 2004	State of Ohio, Noble County, In the Court of Appeals, Seventh District	304	Waite	Contractor performed work not contemplated under its contract and subsequently requested payment for the additional work. The party awarding the contract denied the request for additional payment and the contractor sued. The trial court found, and the app
2-16	Int'l Brotherhood of Electrical Workers, Local Union No. 8 v. Vaughn Industries, Inc.	Mar 31, 2004	In the Court of Appelas of Ohio (Twelth Appellant District, Wood County)	WD-03-048, WD-03-028	Hand work	A trade union filed a complaint in civil court for improper wage and benefit payments. The contractor filed a motion for summary judgment, arguing that the union did not properly complete the administrative paperwork and the court did not have jurisdictio
2-16	Eagle Ridge Condominium Association v. Metropolitan Builders, Inc.	Apr 08, 2004	Colorado Court of Appeals	03CA0805	Erickson	Before beginning construction, a builder created a condo association and its bylaws, which included an arbitration provision. After completion of the project, the association amended the bylaws, deleted the arbitration provision and sued the builder for d
2-17	Jay E. Hartsell d/b/a Security Custom Homes, v. Town of Talty, Texas	Feb 20, 2004	Court of Appeal of the Fifth District of Texas at Dallas	05-03-00901-CV	Francis	A Texas town approved preliminary plats for a group of homebuilders and developers “Additions” that were located in the town’s extraterritorial jurisdiction. After the plats were approved, the town enacted an ordinance extending its existing building code
2-17	Kvaerner Process, Inc. v. Barham- McBride Joint Venture	Apr 06, 2004	Superior Court of New Jersey, Appellate Division	a5390-02	Kestin	Subcontractors filed a $1.7 million construction lien against the general contractor, alleging that the general contractor had not paid over $1.7 million in overrun fees and charges. The trial court discharged the lien and ordered the subcontractors to pa
2-17	Rosen Construction Ventures, Inc. v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo	Apr 16, 2004	Colorado Court of Appeals	03-1758	Lipez	Because, in part, of how a contract was drafted, a developer lost the opportunity to convert a temporary interest in a piece of property into a permanent interest. The district court dismissed the claim, holding that it was barred by the statute of limita
2-17	The Procurement Lawyer - Spring 2004	Digest	NA	NA	NA	This issue of The Procurement Lawyer contains an interesting article on Eichleay offsets as well as an article on Abandonment and Cardinal Change on State and Local Construction Projects.
2-17	Steven Henry Adams v. Unione Meditteranea di Sicurta					This "Briefly Noted" case involves a dispute between insurance companies resulting from a load of steel lost when a barge overturned.
2-18	Matter of Gracon Corporation	Jan 14, 2004	B-293009,  B-293003.2,  B-293009.3			A protesting contractor was unable to convince the Comptroller General that the rating system was too broad to be applied properly or that the winning bidder's pricing coefficient was too low to be reasonable.
2-18	Matter of Burns and Roe Services Corporation	Jan 23, 2004	B-291530			Burns and Roe's protest of an award to J.A. Jones was sustained on the basis of improper evaluation of Burns and Roe's small business participation.
2-18	Matter of McGhee Construction	Feb 05, 2004	B-293239			The General Services Administration properly rejected a bid that was originally submitted with blank prices but did not specifically include the bid guarantee reference when the final prices were submitted.
2-18	Mustang Pipeline Company, Inc. v. Driver Pipeline Company, Inc.	Apr 23, 2004	02-0290	Supreme Court of Texas	Per Curiam	The Supreme Court of Texas found that, because the contract stressed that time was of the essence, a contractor who was behind schedule materially breached the contract. However, no attempt was made to show that reprocurement costs were reasonable, and th
2-18	Martin K Eby Construction Company, Inc. v. Dallas Area Rapid Transit	Apr 29, 2004	03-10728	United States Court of Appeals for the Fifth Circuit	King	Court upholds Dallas Area Rapid Transit (DART) motion to compel Martin K. Eby Construction Company Inc. (Eby) to exhaust DART’s administrative process before filing a lawsuit.
2-19	Appeal of TPS, Inc.	Mar 26, 2004	52421	ASBCA	Freeman	A contractor appealed the denial of its $600,000 claim for total costs of performance, Eichleay damages, and settlement expenses on a roof repair contract. A board of contract appeals denied the contractor’s appeal on all three issues, rescinding Eichleay
2-19	Appeal of FloorPro, Inc.	Mar 30, 2004	54143	ASBCA	Broekhoven	The Armed Servcies Board of Contract Appeals (ASBCA) held that, a contract modification permitting the government to issue a two-party check to the general contractor and a subcontractor gave the subscontractor third-party beneficiary status under the con
2-19	Appeals of Clark Construction Group, Inc.	Apr 20, 2004	15984, 16147, 16148 & 16314	General Services Administration Board of Contract Appeals	Daniels	Clark Construction Group, Inc. participated in a U.S. government mediation process to negotiate a $23 million settlement on claims totaling over $75 million versus the government's asses