A party to a construction contract can waive a right by acting in a manner inconsistent with the enforcement of that right. A party can also waive a right by failing to follow contractual requirements for the enforcement of that right. A municipal project owner in Pennsylvania did both.
The owner encouraged a contractor to continue work past the completion deadline and made no mention of assessing the liquidated damages stipulated in the contract. The owner paid the contractor for the continued work with no set-off for liquidated damages. And, the owner failed to comply with the AIA General Conditions that required it to give the contractor written notice of a claim for liquidated damages within 21 days of the initial delay.
The second case in this issue called for the Federal Circuit to review the sufficiency of a contractor claim for constructive acceleration of the work schedule. The contractor failed to prove excusable delay on the schedule’s critical path. The government’s grant of a time extension and partial remission of liquidated damages was not evidence of government fault.
The third case involved compliance with the statutory requirement that an agreement to arbitrate be in writing. When a written contract form was unsigned by either party, did that comply?
