Flow Down Provision Requires Subcontractor to Proceed During Pendency of Dispute Over Extra Work – A Dispute The Subcontractor Loses as a Result of Course of Performance

LBL Skysystems (USA), Inc. v. APG-America, Inc.
No. 02-5379, 2005 U.S. Dist. LEXIS 19065 (E.D.Pa. Aug. 31, 2005)

In LBL Skysystems (USA), Inc. v. APG-America, Inc., No. 02-5379, 2005 U.S. Dist. LEXIS 19065 (E.D.Pa. Aug. 31, 2005), the District Court concluded that a subcontractor was contractually obligated to continue performance, despite its dispute with the contractor over alleged extra work. Further, the Court concluded that the subcontractor was in the wrong, as its course of performance demonstrated that certain steel work was, in fact, within the subcontractor’s original work scope. As a result, the Court concluded that the contractor’s decision to terminate the subcontract was proper. Continue reading “Flow Down Provision Requires Subcontractor to Proceed During Pendency of Dispute Over Extra Work – A Dispute The Subcontractor Loses as a Result of Course of Performance”

Massachusetts Court Equates Change in Construction Sequence with a Change in Scope, Awarding Inefficiency Damages Based on Modified Total Cost Claim

Daniel Marr & Son Co. v. Coreslab Structures, Inc. et al.
No. 03-1880, 2005 Mass. Super. LEXIS 545, (Mass. Supp. Nov. 21, 2005)

In Daniel Marr & Son Co. v. Coreslab Structures, Inc. et al., No. 03-1880, 2005 Mass. Super. LEXIS 545, (Mass. Supp. Nov. 21, 2005), plaintiff sub-subcontractor sued defendant subcontractor for various breaches of contract related to the construction and erection of precast concrete panels. The original scope of work dictated the erection of the precast panels would proceed on a floor-by-floor basis. During the project, the defendant order plaintiff to alter the erection sequence, requiring plaintiff to install the precast panels on an as-directed basis. Plaintiff subsequently asserted a claim for productivity inefficiencies related to the revised sequence and other issues. Defendant attacked Plaintiff’s damages calculations as an “unsegregated partial total cost claim.” Continue reading “Massachusetts Court Equates Change in Construction Sequence with a Change in Scope, Awarding Inefficiency Damages Based on Modified Total Cost Claim”

Maryland Court Holds that Subcontract Requirement of Passing Through Subcontractor’s Claims Against Owner Does Not Create “Pay-When-Paid” Condition; Prime Contractor Remains Liable for Payment

Richard F. Kline, Inc. v. Shook Excavating & Hauling, Inc.
165 Md. App. 262, 885 A.2d 381, 2005 Md. App. LEXIS 273 (Maryland Ct Spec. App., October 31, 2005)

Richard F. Kline, Inc. (“Kline”) contracted with the City of Frederick, Maryland (the “City”) for the construction of a flood control project. Kline subcontracted with Shook Excavating & Hauling, Inc. (“Shook”) to perform a portion of the excavation work. The subcontract did not contemplate Shook’s removal of any contaminated soils. When such soils were discovered, the City and project engineer directed Kline to begin remediation. Kline in turn requested that Shook perform this work, and Shook did so. Eventually, the Maryland Department of the Environment determined that the soils were not in fact contaminated. Disagreeing with this determination, however, Kline and Shook continued to remediate the soil before using it as backfill. Continue reading “Maryland Court Holds that Subcontract Requirement of Passing Through Subcontractor’s Claims Against Owner Does Not Create “Pay-When-Paid” Condition; Prime Contractor Remains Liable for Payment”