February 1997

Krygoski Constr. Co., Inc. v. United States,
94 F.3d 1537 (Fed. Cir. August 1, 1996)
Government need not show “changed circumstances” in order to justify convenience termination; rather, termination is proper in absence of bad faith or abuse of discretion.Continue Reading Federal Circuit Clarifies Narrow Scope of Torncello and Proper Standard for Reviewing Termination for Convenience

Ellett Constr. Co., Inc. v. United States,
93 F.3d 1537, U.S. App. LEXIS, August 26, 1996
A settlement proposal in response to a termination for the convenience of the Government is a non-routine claim subject to the jurisdiction of the courts pursuant to the Contracts Disputes Act, provided that the settlement proposal ripens into a claim after negotiations have reached an impasse.Continue Reading Federal Circuit Court Of Appeals Addresses Definition of "Claim" Under The Contract Disputes Act

Sokaogon Gaming Enterprise Corp. v. Tushie-Montgomery Assocs, Inc.,
86 F.3d 656, 1996 U.S. App. LEXIS 13399 (7th Cir. June 5, 1996)
District Court erred in granting summary judgment in favor of Indian tribe on grounds of tribe’s sovereign immunity; by signing contract with explicit arbitration clause, tribe agreed that it could be sued.Continue Reading Seventh Circuit Holds that Indian Tribe Agreed to Waive Sovereign Immunity

Roberts & Schaefer Co. v. Merit Contracting, Inc.,
99 F.3d 248, 1996 U.S. App. LEXIS 28280 (U.S. Ct. of Appeals, 7th Cir.)
Contract between the parties contained an enforceable forum selection clause, even though the actual written agreement was signed by only one of the parties; therefore, suit brought in Illinois state court pursuant to the forum selection clause, was not removable to Federal Court.Continue Reading Seventh Circuit Rules That Forum Selection Clause in Construction Contract Is Enforceable Under Illinois Law

Neal & Co., Inc. v. City of Dillingham and CH2M Hill Northwest, Inc.,
923 P.2d 89 (Alaska 1996)
In February of 1987, the City of Dillingham (“City”) solicited bids for the construction of a sewerage facility, which would include two lagoon ponds. CH2M Hill (“Hill”), the City’s engineer and on-site representative, had completed a geotechnical survey and data summary, which was provided to interested bidders. Neal & Company, Inc. (“NCI”) was declared the low bidder at $2,059,991 and began excavation on June 6, 1987.Continue Reading The Supreme Court of Alaska Held That a Contractor’s Failure to Comply with the Contractual Notice Provisions Barred Its Claim as a Matter of Law

Olympus Corp. v. United States,
98 F.3d 1314, 1996 U.S. App. LEXIS 27509 (U.S. Fed. Cir., Oct. 23, 1996)
 Standard “Differing Site Conditions” clause in Government contract requires, as a condition to recovery under that clause, that the alleged differing condition which serves as the basis of the claim must have existed at the time the contract was executed.Continue Reading Federal Circuit Court of Appeals Denies Contractor Recovery Because Alleged "Differing Site Condition" Did Not Exist at Time of Contract Award.

Central Florida Plastering and Development, et al. v. Sovran Constr. Co., Inc.,
679 So.2d 1226 (1996)
Sovran Construction Company, Inc. (“Sovran”) contracted with the Orange County School Board (“School Board”) to construct the Cypress Creek High School. Sovran, in turn, subcontracted with Central Florida Plastering and Development Company, Inc. (“CFP”) requiring CFP to install lath and stucco panels on the exterior walls and to install ceiling framing in the auditorium. The contract between Sovran and the School Board obligated Sovran to pay to the School Board liquidated damages of $1,000 per day, and Sovran’s subcontracts with CFP called for CFP to indemnify Sovran “on account of any such damages and additional costs as a result of delays of CFP.”Continue Reading The Florida Court of Appeal for the Fifth District Reversed the Trial Court’s Imposition of Delay Damages When the Plaintiff’s Expert "Assumed" Certain Expenses and Therefore Lacked Sufficient Factual Basis to Express His Opinions