QUESTION

On a regular MMCD utility rehabilitation contract between contractor and municipality, the project is near completion, but not within the strict definition of Substantial Performance. The Owner has told the contractor to not go ahead with the remaining work, as it is at a separate site and the site is not ready. There is no schedule for the site to be made ready. The contractor wants Substantial Performance granted on the work completed to date, as it is at a separate site and is now being used by the Owner. They want the lien holdback clock to start so they can get their 10% back on the work completed. Is there any recourse for the contractor?

COMMENT

"The Contractor wants substantial completion on the work completed to date as it is a separate site and is now being used by the owner. They want the lien holdback clock to start so they can get their 10% back on the work completed."

Reference GC 10.3.2 Delays which are the Owners’ responsibility Section 3 page 45 05 52 User Guide

The User Guide (10.3.2.1, 10.3.2.2) suggests that Owner caused delays (per GC13.1) entitle the Contractor to reimbursement for costs and lost time. In this case, the CA must act impartially and issue a Change Order for the proven impact, even if the CA was the cause of the delay.

The Contract Considerations video “Partial vs Staged Substantial Completion" discusses methods of reducing the work remaining under the contract and processing a request for substantial performance. A new contract for the balance of the work may be required (see video).