Better Roads

May 2014

Better Roads Digital Magazine

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Page 24 of 31

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 and superfluous. 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. 7H[W,1)2WRRUYLVLWZZZEHWWHUURDGVFRPLQIR 7H[W,1)2WRRUYLVLWZZZEHWWHUURDGVFRPLQIR Email: ® ding, as well as environmental heavy equipment and ety. Kids will love e construction , landscapes and 1.20 - $1.85 per ending on quantity. tion additional. der ™ t-shirts XS (2-4), ), Roady the Road Builder TM T-shirts Why not outfit kids in Roady the Road Builder TM t-shirts made of 100% pre-shrunk cotton? Sizes: Youth XS (2-4), Small (6-8), Medium (10-12), Large (14-16), Adult Small (34-36). $6.95 per shirt (plus shipping and handling). Quantity discounts available. To order, call (800) 430-4540 or visit Email:

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