In Appeal of – JE Dunn Construction Co., the Armed Services Board of Contract Appeals considered and denied the government’s post-hearing motion to dismiss JE Dunn’s complaint for failure to submit sums certain for each of its three claims to the contracting officer. JE Dunn filed its appeal in January 2022 seeking damages related
Damages
Substantial Performance v. Material Breach
All breaches are not created equal. A minor, technical breach may be deemed “immaterial.” Other breaches – so-called “material” breaches — deprive the non-breaching party of something important or essential to the purpose of the contract. Whether a breach is material or immaterial is normally a question for the finder of fact. The answer determines what remedy…
Court Separates Facts from Fiction – Lack of Supporting Project Documents Dooms Contractor
A recent decision from the U.S. District Court for the Southern District of Florida demonstrates how facts supported by documents generated during the project can be vital to prime contractor/subcontractor disputes. In Berkley Ins. Co. v. Suffolk Constr. Co., No. 19-23059-CV, 2024 WL 3631226 (S.D. Fla. July 22, 2024), following a two-week bench trial…
Designer Qualifies as Subcontractor Under Colorado Prompt Payment Act
The court in AECOM v. Flatiron was back at it last week with rulings on the parties’ post-trial motions. As you may recall, the case was tried to a jury earlier this year. The jury returned a verdict for AECOM in the amount of $5 million. Flatiron’s modified total cost counterclaim in the amount of…
United States Ordered to Pay Breach of Contract Damages to Nuclear Operator in Spent Fuel Dispute
The Federal Court of Claims recently ruled in favor of the operator of the Vermont Yankee nuclear power plant in its long-running dispute with the United States over the disposal of spent nuclear fuel (NorthStar Vermont Yankee, LLC v. United States, No. 18-1209C, 2024 WL 3563239 (Fed. Cl. July 29, 2024)). Pursuant to a statutory…
Mistake No. 4 of the Top 10 Horrible, No-Good Mistakes Construction Lawyers Make: Not Knowing When to Fold ‘Em
I have practiced law for 40 years with the vast majority as a “construction” lawyer. I have seen great… and bad… construction lawyering, both when representing a party and when serving over 300 times as a mediator or arbitrator in construction disputes. To be clear, I have made my share of mistakes. I learned from…
Signature Lines Matter: When a Contract Amendment Is Not Really an Amendment
Construction law is largely a matter of contract law. Yes, there are federal and state statutes that deal with construction issues and, yes, construction cases sometimes involve tort claims, but more often than not, construction disputes revolve around the parties’ contract. What constitutes the parties’ contract is frequently undisputed. As one developer learned last week, that is…
Second Circuit: No-Damages-For-Delay Clause Bars Claim
The Second Circuit Court of Appeals recently applied a no-damages-for-delay provision to affirm the dismissal of a demolition contractor’s breach of contract claims. The project involved reconstructing and raising the Bayonne Bridge between Staten Island and New Jersey. The Port Authority awarded the general contract on the $1.29 billion project to the joint venture Skanska…
Limitation of Damages Clause in Contract Held Inapplicable to Subcontractor’s Change Order Claim
Construction contracts often include clauses that purport to limit the liability of one or both parties. This includes clauses that completely prohibit any claims for certain types of damages such as lost profits and other consequential damages, extended overhead or other “delay” damages, and exemplary/punitive damages. Contracting parties may also include clauses that purport to cap liability…
The Risk of Fighting on Two Fronts: Court Admits Evidence of General Contractor’s Claims Against Other Parties
The court in AECOM v. Flatiron is back at it issuing additional evidentiary rulings as the parties head to trial later this month. These latest rulings highlight the risk of seeking the same damages from multiple parties, sometimes referred to as “fighting on two fronts.” As you may recall, AECOM v. Flatiron involves claims by…