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Under Miller Act, Waiver Of Right To Recover Must Be Explicit

Monday, January 03, 2011 03:07 am


Miller Act -- Dispute Resolution

Foundation Fence, Inc. v. Kiewit Pacific Company, 2010 U.S. Dist. Lexis 108915 (D. Cal. Oct. 13, 2010)

An implied waiver of the subcontractor's right to bring claims against the project owner or general contractor is not necessarily an actual waiver of such right.

The U.S. Army Corps of Engineers hired Kiewit Pacific Company (Kiewit) as the general contractor to build a portion of the border fence between the United States and Mexico. Kiewit hired Foundation Fence, Inc. (Foundation) as a subcontractor. After disputes about analleged design change arose, Foundation sued Kiewit and its payment bond surety to recover alleged additional costs totaling $1.8 million.

Kiewit argued that Foundation could not bring these clai [...]

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