Construction Law Blog
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Early this month, the three-member Board appointed by the Washington State Department of Transportation (“WSDOT”) and Seattle Tunnel Partners (“STP”) to assist in resolving contractual disputes on the Alaskan Way Viaduct Replacement Project issued its latest recommendation. The question before the Board was narrow in scope: was an eight-inch steel well-casing within the work zone adequately identified in the contract? The Board determined that the well-casing was clearly identified in the contract, but the contract documents did not clearly identify that the casing was made of steel. The DRB’s recommendation was that the contractor encountered a differing site condition.
Nexus Between Work Performed and Cause of Action is Required for Six-Year Statute of Limitations to Run From Termination of Services
Recently, Division II of the Washington Court of Appeals held that for the six-year time period specified in RCW 4.16.326(1)(g) to run from the termination of services, rather than substantial completion of construction, there must be some nexus between the construction work performed at the claimed termination of services date and the cause of action.
Washington Court Strictly Enforces Default Provision, But a Material Breach Can Still Excuse Performance
The Washington Court of Appeals strictly enforced a default provision requiring notice and the opportunity to cure, but found that the party who failed to provide the notice could still contend a material breach occurred that excused its performance. In DC Farms LLC v. Conagra Foods Lamb Weston, Inc., a food processor was not excused from providing a contractually-required notice of default and opportunity to cure because it maintained that a farmer’s breach was incurable. 179 Wn. App. 205, 317 P.3d 543 (Div. 3, January 30, 2014). Failure to provide the notice of default and opportunity to cure was a breach of contract by the food processor.
Public Private Partnerships (“P3”) generally involve a performance-based contract between a public sector (any level of government) and a private sector (usually a consortium of private sector companies working together) to arrange financing, delivery, and typically long-term operations and maintenance (O&M) of public infrastructure projects. P3 contracts referred to as Project Agreements are typically awarded through the competitive bidding process. The private partner is contractually obligated to fulfill the Project Agreement (at the risk of losing its investments), which binds its obligations as defined by the State.
Contractors typically believe that they warrant their work for only one year unless longer periods are specifically required and set forth in the contract documents. The American Institute of Architects Form A201 2007, Warranty in § 3.5, and the accompanying one-year correction period set forth in § 12.2, however, do not limit warranty periods, and the contractor’s warranty actually lasts for the duration of the statute of repose – six years in Washington, and ten years in Oregon and California.
The simple definition of a concurrent delay on a construction project is the occurrence of two or more independent delay events within the same period of time or delay period. See previous post on the same topic: Allocation of Concurrent Delay Damages on Construction Projects. Concurrent delays can affect both the Owner and Contractor or the Contractor and a Subcontractor. The delay events can then relate to one activity or multiple activities. Concurrent delays may affect a Contractor’s or Subcontractor’s claim if one delay event is excusable (as in an event for which a time extension is provided, but no damages are due – i.e. a weather event) and the other is not (as in an event for which compensable is due – i.e. a change in scope).
In a landmark decision, the Civilian Board of Contract Appeals (“CBCA” or the “Board”) issued a declaratory judgment finding the Veterans Administration (“VA”) materially breached its contract with the joint venture of Kiewit-Turner (“KT”) by failing to provide a design that could be constructed for $582M as the VA represented would be the contract amount. As a result, the Board found that KT had the right to stop work on the Project in the middle of performance.
John P. Ahlers and Paul R. Cressman, Jr. are pleased to announce that they are presenting at The Seminar Group’s upcoming 22nd Annual Washington Construction Law Seminar on September 17th and 18th, 2015 at the Grand Hyatt Hotel in Seattle.
In Waltz v. Tanager Estates Homeowner’s Association, Division III of the Washington Court of Appeals addressed a lawsuit brought by homeowners, the Waltzes, against their Homeowners Association (“HOA”) and individual members of the Board of the HOA. 332 Wn. App. 85, 332 P.3d 1133 (August 19, 2014). The Waltzes sought to remodel their home, but their remodeling plans were rejected by the HOA Board. The Waltzes brought suit against the HOA and the individual Board members. The trial court found that the Board members were not grossly negligent in the performance of their duties and, thus, were not liable to the Waltzes. The Waltzes appealed.
The Veterans Benefit Act of 2003 established a procurement program for Service-Disabled Veteran-Owned Small Business (“SDVOSB”) concerns. This program provides that contracting officers may restrict competition to SDVOSB, and award a sole source or set aside contract where certain criteria are met. The Small Business Administration (“SBA”) then issued rules establishing a SDVOSB Concern Program. The SBA’s program establishes the criteria to be used in federal contracting to determine service disabled veteran status, business ownership and control requirements, and guidelines for establishing sole source and set aside procurement opportunities in protest and appeal procedures (see Code of Federal Regulations (“CFR”) 13 CFR § 125.8-125.10).