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Casual Adherence To Contract Provision Can Constitute Awaiver

Saturday, October 01, 2011 08:54 am

 

Change Order

Tripoli Management, LLC v. Waste Connections of Kansas, Inc., 2011 U.S. Dist. Lexis 77377 (D. Kan. July 18, 2011)

Even where a contract calls for written change orders, words or conduct can modify that requirement.

Tripoli Management, LLC, doing business as Dwire Earthmoving and Excavating (Dwire), performed on a project to construct a landfill cell in Harper County, Kansas. Project owner Waste Connections of Kansas, Inc. WCK) paid Dwire $744,000 for what work it believed the ontractor had completed under the parties' contract. ubsequently, Dwire filed claims seeking compensation or further costs it alleged were due under the contract.

Specifically, Dwire claimed: additional costs for hauling more excavated material a longer distance; compensation for additional quantities of material actually excavated; and "time and material" billing for removal of water and mud from the project site and for extra "rain flap" work. WCK pointed out that Dwire had failed to submit these changes in writing, as required by the contract, before performing the additional excavation work and water/mud removal. Instead, Dwire submitted these items as additional costs on its payment applications, calling those applications "change order #4" and "change order #5."

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