Federal Circuit Court of Appeals Denies Contractor Recovery on Claim For “Differing Site Conditions” Because Information Available for Inspection but Not Incorporated in the Contract Documents Revealed Conditions Which Were Encountered

Randa/Madison Joint Venture III v. Dahlberg,
239 F.3d 1264, 2000 U.S. App. LEXIS 1736 (U.S. Fed. Cir., Feb. 7, 2001)

Randa/Madison Joint Venture III (“Contractor”) entered into a construction contract with the United States Army Corp of Engineers (“Government”) to perform de-watering of an excavation for a pump house foundation that was to extend forty (40) feet below the existing ground surface. The contract included the standard differing site conditions clause set forth in Federal Acquisition Regulation (“FAR”) § 52.236-2 (2000). In addition, the contract included two separate clauses which addressed the Contractor’s obligations to inspect the site and materials produced by the Government that were made available for inspection. The first clause required that the Contractor acknowledge that it has satisfied itself as to the character, quality, and quantity of surface and subsurface material or obstacles to be encountered insofar as this information is reasonably ascertainable from any inspection of the site, including all exploratory work done by the Government. The second clause addressed physical data and stated that whenever subsurface exploration logs are presented in the Contract Documents, soil test results and soil and rock samples are available for inspection. These test results and samples were not included in the contract documents. Continue reading “Federal Circuit Court of Appeals Denies Contractor Recovery on Claim For “Differing Site Conditions” Because Information Available for Inspection but Not Incorporated in the Contract Documents Revealed Conditions Which Were Encountered”

New York Court Holds That Parent of Dissolved Subcontractor May Not Sue Prime Contractor or Surety Absent Formal Merger or Prime Contractor’s Assent to Substitution

A. Servidone, Inc. v. Bridge Technologies, LLC,
2001 N.Y. App. Div. LEXIS 1407 (N.Y. App. Div. Feb. 8, 2001)

Servidone contracted with the State Department of Transportation to build three bridges. Pursuant to that contract, Servidone subcontracted with Bridge Technologies, Inc., for installation of the superstructures of two of the bridges. During the performance of the subcontract work, Bridge Technologies, Inc. was dissolved, and its parent corporation, Bridge Technologies Ltd. continued the performance of the subcontract. Servidone, however, was not notified of the dissolution. Continue reading “New York Court Holds That Parent of Dissolved Subcontractor May Not Sue Prime Contractor or Surety Absent Formal Merger or Prime Contractor’s Assent to Substitution”

West Virginia Supreme Court Allows Contractor to Sue Engineer for Negligence and Breach of Warranty, but Not as Third-party Beneficiary

Eastern Steel Constructors, Inc. v. City of Salem,
No. 28202, 2001 W. Va. LEXIS 3 (W. Va. Feb. 9, 2001)

The City of Salem, West Virginia, entered into a contract with Kanakanui Associates pursuant to which Kanakanui was to provide engineering and architectural services for improvements to Salem’s existing sewer system. Kanakanui produced plans and specifications to be used to solicit bids for the improvements. Eastern Steel Constructors, Inc. bid on a portion of the project relying on the plans provided by Kanakanui and was awarded the contract. Continue reading “West Virginia Supreme Court Allows Contractor to Sue Engineer for Negligence and Breach of Warranty, but Not as Third-party Beneficiary”