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Contract Allowed Price Adjustment, Signed Waiver Is Invalid

Thursday, September 01, 2011 07:25 am


Delay Damages Josef Gartner USA LP, v. Consigli Construction Co., Inc.,  2011 U.S. Dist. Lexis 62492 (D. Mass. June 10, 2011)

A general contractor argued that, in exchange for progress payments, its sub signed away any right to recover for delay costs. But the court found insufficient evidence of the sub's intent to unilaterally waive its rights.

Consigli Construction Co., Inc. and J.F. White Contracting Company, Inc. (together, Consigli/JFW) acted as general contractor on a City of Cambridge, Massachusetts project to expand the public library. Consigli/JFW hired subcontractor Josef Gartner USA, LP (Gartner) to install a curtain wall for $6.6 million. During the project, several delays caused by other subs cost Gartner time and money. As a result, Gartner submitted a "Time/Cost Impact Claim" to Consigli/JFW for $500,000, but the parties could not reach an agreement on the claim. In addition, Gartner submitted at least three change order proposals, totaling $45,0000, which Consigli/JFW did not pay. Gartner sought recovery in court, alleging contract breach and unjust enrichment.

Under the parties' subcontract, Gartner was required to sign a "Waiver and Payment Affidavit" to acknowledge each progress payment received. Consigli/JFW claime [...]

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