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Volume: 18, Issue: 1 - 01/15/2020

 

When a design professional stamps, seals, or signs a document, a number of parties, not just the client, foreseeably rely on the information conveyed in that document. If the reliance is justified and the information is false, current legal precedent allows a third party to recover from the design professional for negligent misrepresentation.

 

A Massachusetts appellate court recently ruled that an engineer who stamped a set of drawings for a constructor did not mislead the project owner into believing the engineer would monitor construction for compliance with the building code. The express language of an “Engineer Disclaimer,” printed below the stamp, limited the scope of justifiable reliance.

 

Other cases this month include a constructive waiver of specifications on a government contract and a dispute between a subcontractor and general contractor about who was responsible for verifying existing dimensions. Read more.


 

An engineer stamped a set of drawings for a constructor but disclaimed responsibility for monitoring construction for compliance with the building code. The engineer did not negligently mislead the project owner into believing the engineer would be playing that role.


 

A subcontractor was responsible, under the terms of its agreement, for field verification of the dimensions of an existing structure. The sub could not rely on engineering drawings or as-built record drawings. Contractor approval of subcontractor shop drawings did not relieve the sub of that responsibility.


 

The government constructively waived a specification when it knowingly accepted deviating performance, and then directed the contractor to place fill over the nonconforming work.


Volume: 17, Issue: 24 - 12/31/2019

 

The staff of Construction Claims Advisor wishes our loyal readers a Happy and Healthy 2020!

 

A common procedure for subcontractor change orders starts with the project owner’s representative informing the prime contractor of desired changes in the work. The contractor then informs the appropriate subcontractor. Based on information provided by the sub, the contractor submits a change order request to the owner. An approved change order increases the prime contract price, enabling the contractor to pay the subcontractor for the changed work. When and how the contractor and its sub price the changed work is a matter between the two, but it is the prime contractor’s responsibility to pay the subcontractor.

 

The second case involves a delay claim on a federal project that involved CPM schedule analysis, which suffered from poor project records. Read more.


 

A subcontractor could not recover payment for change order work from the project owner. The unjust enrichment claim was not viable because there was no evidence the sub expected direct payment at the time the work was performed. Nor was the owner aware anything other than normal change order protocol would be followed.


 

The Civilian Board of Contract Appeals has criticized aspects of the methodology used by experts for both the government and a contractor. The questions involved float time in the schedule and the calculation of extended job site overhead costs.


Volume: 17, Issue: 23 - 12/16/2019

 

Contractors are frequently required to provide notice of a claim. Formal written notice must be served within a stipulated number of days of the occurrence giving rise to the claim.

 

Failure to provide timely notice is a waiver of the contractor’s claim rights. This is a harsh rule and a trap for contractors if the notice period starts to run with any “occurrence” in the field during ongoing construction. Fortunately, the contract language is not always applied in this manner. Read more.


 

A contract required written notice of claim within 10 days of the “occurrence” giving rise to the claim. But the contract also authorized field level resolution of contractor requests. The notice period did not necessarily commence with an occurrence during construction. Some degree of owner decision making may have been necessary to trigger the notice period.


 

Where a government contracting officer waived the payment bond/payment security clause of a prime contract and increased the retainage from progress payments, an unpaid subcontractor stated a claim against the government as an intended third-party beneficiary of the prime contract.


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