Question 1

The CA has not responded to my request for a significant amount of time; is this considered Breach of Contract?

Accepted Answer

QUESTION

I’ve been trying to resolve a dispute regarding liquidated damages. The Contract Administrator has not responded to my request for a significant amount of time; is this considered Breach of Contract?

COMMENT

Check section 17 of the GCs for the dispute resolution process. There is a video (Contract Considerations) that may clarify the process, as well as a flow chart.

Question 2

Dispute between CA and Contractor regarding claim for Concealed or Unknown Condition

Accepted Answer

QUESTION

As part of our scope on a project, we were required to install an augured casing pipe beneath a creek. During installation an unknown object was encountered so the work could not be completed as designed. Efforts were made to retrieve the auguring tools without success. The CA was notified and a claim was submitted for review, however the CA rejected the claim in its entirety. The CA's justification is as follows:

"It is my initial decision that the difficulty encountered by the Contractor in performing the creek undercrossing by the construction means was reasonably inferable from the examination of the Place of the Work. This is not a Concealed or Unknown Condition as defined by the Contract and so is not compensable under the terms of the Contract."

Additional information: No geotechnical report was provided for this project.

Our question is whether or not a buried obstruction that was encountered at the place of work, that has prevented our work from being completed as designed, which no information was provided to indicate such obstructions, should be considered a concealed or unknown condition.

COMMENT

11.1 A “Concealed or Unknown Condition” is a surface or subsurface physical condition encountered by the Contractor in the performance of the Work that:

According to GC 3.6.1, the Contract Administrator is the interpreter of the Contract documents in the first instance (not MMCD). MMCD cannot offer legal advice or an opinion on the merits of a dispute, except to point toward clauses in the GCs which might be helpful in approaching the dispute.

The contract requires that both parties follow the process outlined in GC 17. Section 3.5.4 of Volume I the “User Guide” Section 3 Page 6 of 54 addresses the special case where the design may be changed to reflect site conditions “differs materially from conditions disclosed in the contract documents”.

Question 3

There has been a preliminary deficiency holdback list with values sent out and it exceeds the final progress payment. What can a Contractor do?

Accepted Answer

QUESTION

I am the Contractor. Substantial Completion is not met. There has been a preliminary deficiency holdback list with values sent out and it exceeds the final progress payment. What can a Contractor do? And what can the Contract Administrator do?

COMMENT

GC 18.6 sets out the process for Substantial Performance. GC 18.4.2 provides for a 200% holdback when considering Substantial Performance, until the deficiency is remedies. If the values established are in dispute, then refer to Disputes, section 17.0 of the GCS.