Better Roads May 2014 23
b. All Other Claims Except Acceleration and Delay
— If the contractor does not file such written notice
before beginning the work out of which such claim
arises, the contractor hereby agrees he shall have
waived any additional compensation for that work,
and the contractor shall have no claim thereto.
The Sureties argued the DOT waived strict compliance
with the notice and claims procedures in the contract. They
argued a jury could conclude BAC and the Sureties reason-
ably complied with the notice and claims provisions. The
Sureties also argued the DOT's actual notice of changed
conditions allowed them to avoid the notice requirements.
The Court of Appeal disagreed with the Sureties and af-
firmed the judgment. The Court ruled the DOT did not
waive strict compliance with the notice and claims proce-
dures in the contract. Despite evidence, BAC was "afraid to
ruffle the feathers" of the DOT by filing a claim, there was
no evidence the DOT did any affirmative act that would
lead BAC to believe it was not necessary to give timely no-
tice of a claim.
In addition, the Court found none of the communica-
tions by BAC or the Sureties to the DOT constituted rea-
sonable compliance with the notice and claims provisions,
and the Sureties intentional failure to provide additional
requested information to the DOT was not "in the spirit"
of the contract. The Court further found that to the ex-
tent the DOT had actual knowledge of a delay or price
escalations with regard to the project, it did not leave the
Sureties free to ignore the contract requirements regarding
certification of a claim. The Court stated the following:
[i]f compliance with the Contract could be deemed
waived or excused because the DOT was aware of a delay
or of price escalations, which, as to the latter, would often
be public knowledge, then the provision requiring timely
written [notice of a potential claim] would be meaningless
The Western Surety case underscores the importance of
thoroughly reviewing, understanding and complying with a
contract's notice requirements. Although exceptions do ex-
ist that allow contractors to "get around" contract require-
ments regarding notice of changed conditions and claims,
it is risky to assume such exceptions will apply. To avoid this
mistake, contractors should attempt to comply with each
and every notice provision, or they run the risk of a similar
result as in Western Surety, where the failure to comply with
the contract's requirements was fatal to the claim.
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