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Project Owner Breached Contract by Attempting to Terminate Contractor

Our client, large construction contractor, completed construction of a new entry at a public building. The scope of work included construction of new concrete sidewalks, stairs, accessibility ramp, canopy, lighting, railings and a non-load bearing cast-in-place concrete wall, among other improvements. The owner alleged the contractor was not entitled to payment due to purported late completion and faulty workmanship, particularly with regard to the cast-in-place concrete wall. Although the wall was built in accordance with the owner's specifications, the owner disliked the aesthetics of the finished wall. The owner ignored its role in causing delays attributable to its failure to secure the building permit for some six weeks following issuance of the notice to proceed. It refused the contractor's request to be permitted to return to the project to complete remaining punch list work. The contractor even offered to apply a sealant and coating to the wall to provide a more refined "architectural" finish. Instead, the owner and its architect, declared that the cast-in-place wall had to be demolished and completely re-built. It sought public bids and retained a new contractor.

Our client initiated arbitration in accordance with the contract's dispute resolution provision. It challenged the owner's rejection of the cast-in-place wall under the Spearin Doctrine. Under Spearin a contractor should not be held liable for a deficient project outcome in the work where it has carefully followed the plans and specifications provided by the owner. Following two days of arbitration hearings involving extensive expert testimony regarding American Concrete Institute standards and a site inspection of the completed work (the wall had not yet been demolished), the arbitrator ruled in our client's favor. The arbitrator declared that the completed work, including the cast-in-place wall, complied with the owner's plans and specifications. The arbitrator determined that the owner's expectations of an architectural finish were inconsistent with the specifications it issued for the cast-in-place wall. The arbitrator awarded our client 100% of the funds due on the contract and declared that the owner's attempt to terminate the contract was unwarranted.

Firm Highlights

Matter

Defense of Contractor - Davis-Bacon Prevailing Wage Claims

This case concerned the construction of a marine boat dock on an island in Boston Harbor. The Plaintiff claimed entitlement to unpaid wages and enhanced wages under the federal prevailing wage statute known as...

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Breach of AIA Construction Contract and Waiver of Consequential Damages By Owner

Our client, a general contractor, and the project owner signed an American Institute of Architect A101 contract with accompanying A201 general conditions. The project included construction of a new office/retail building, and associated site...

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Defense of Breach of Contract, Negligent Construction and Breach of Duty of Workmanship Claims

We successfully defended a large mechanical contractor in connection with lawsuit stemming from the comprehensive failure of the hydronic piping system in a resort hotel's heating and cooling system. Through fact and expert witness...

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Surety Takeover of Mountain Top Communications Infrastructure Contract Following Owner’s Default of Contractor

We represented a performance bond surety asked to step in and complete four communications infrastructure projects. We engaged key consulted and mapped about a path forward for completion of the project with our client's...

Publication/Podcast

Is the Coronavirus Pandemic a Force Majeure?

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Engineering Malpractice

We asserted claims on behalf of a large private institution related to defective design and installation of a geothermal heating and cooling system in a high profile public building. The matter was settled favorably...

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Client Recovers on Claim On Differing Site Conditions Claim Involving Subsurface Contaminated Soils

We successfully resolved a substantial claim for our client, a large, Maine based site contractor, stemming from differing site conditions encountered on an aviation facility owned by project federal government. The case stemmed from...

Matter

Procurement

We have assisted many owners, and contractors in design and construction contracting including: Massachusetts Institute of Technology Investment Management Company on over a billion dollars in projects in Kendall Square area of Cambridge, Massachusetts...

Publication/Podcast

Massachusetts COVID-19 Essential Services as they Relate to the Construction Industry

On March 23, 2020, Governor Baker issued “an emergency order requiring all businesses and organizations that do not provide ‘COVID-19 Essential Services’ to close their physical workplaces and facilities to workers, customers and the...

Event

COVID-19 and Maine Construction Contractors: A Roundtable Video Conference on Legal, Financial, and Tax Developments

Attorneys from Verrill's Construction Law and Employment & Labor Groups are teaming up with accounting professionals from Albin Randall & Bennett and the Associated General Contractors of Maine to offer insights into the evolving...