Tampa D Fluor Enterprises, Inc. v. Duke Energy Florida, LLC, No. 8:19-cv-00224, 2019 BL 135007, at *1 (M.D. Fla. Apr. 16, 2019)

On April 16, 2019, a Florida federal court dismissed without prejudice Fluor Enterprises’ claim that Duke Energy wrongfully drew down a $67 million letter of credit issued in connection with Fluor’s construction of a gas-fired electrical generation facility in Citrus County, Florida.  In addition to the core breach of contract claim which suffered from several procedural issues, the court dismissed extra-contractual claims for conversion, civil theft, breach of the implied covenant of good faith and fair dealing, and violation of the Florida Deceptive and Unfair Trade Practices Act.

Continue Reading Florida Federal Court Dismisses Fluor Enterprises’ $67M Claim Against Duke Energy for Wrongful Draw Down of Credit Letter

James Talcott Construction, Inc. v. United States, No. 14-427 C, 2019 BL 72711, at *1 (Fed. Cl. Mar. 4, 2019)

In May of 2010, the United States, acting through the Department of Defense (the “Government”) awarded a contract to James Talcott Construction, Inc. (“Talcott”) to replace existing housing for military families at the Malmstrom Air Force Base in Great Falls, Montana.  Talcott was required to construct thirteen buildings, each comprising seventy housing units.  Each building was to be constructed with concrete foundations and wood framing, and the project’ design called for wooden floor joists and subfloor decking to be enclosed in crawlspaces.  The contract stated that the “structural drawings and specification represent the finished structure… [but] do not indicate the method of construction.  The contractor will provide all measures necessary to protect the structure during construction.”  The plans and specifications were silent as to ventilation of the crawlspaces.

Continue Reading Court of Federal Claim Rejects Spearin Claim and Holds Contractor Responsible for Failure to Prevent Mold Growth

Tri-State Elec., Inc. ex rel. Apex Enters. v. Western Sur. Co., 1:14-CV-00245, 2017 U.S. Dist. LEXIS 4974 (D. Idaho Jan. 11, 2017)

The United States Department of Veterans Affairs (the “VA”) contracted with Sygnos, Inc. (“Sygnos”) for improvements to the electrical system at a VA hospital in Boise, Idaho. Sygnos subcontracted a portion of the work to Apex Enterprises, Inc. (“AEI”), who in turn subcontracted a portion of its work to Tri-State Electric, Inc. (“Tri-State”).  Delays plagued the project from the outset, and the work – originally scheduled for completion in 240 days – ultimately took more than 950 days to perform.  Disputes concerning responsibility for and the amount of delay damages ensued.

Sygnos submitted a request for equitable adjustment to the VA as a result of the delays. Receiving no timely response from the VA, Sygnos converted the request for equitable adjustment to a claim for delay damages under the Contract Disputes Act, which the VA and Sygnos settled for $645,000.  AEI and Tri-State subsequently sued Sygnos for delay damages they incurred on the project.  Sygnos did not dispute that AEI and Tri-State had suffered delays but it disputed some categories of damages claimed and cited the no-damage-for-delay clause in Tri-State’s contract as barring its claims.


Continue Reading Federal Court in Idaho Rules That a Government Contractor May Recover Consultant Fees, So Long as Those Fees Were Incurred in Contract Administration and Negotiation of an Equitable Adjustment But Denies Recovery Because the Consultant Failed to Maintain Proper Records

Vanguard Constr., Inc. v. United States, 2015 U.S. Claims LEXIS 1158 (Fed. Cl. Sep. 8, 2015)

The United States Air Force (the “Government”) entered into a contract with Vanguard Construction, Inc. (“Contractor”) to replace a roof (the “Contract”).  The Contract incorporated by reference portions of the Federal Acquisition Regulation (FAR).

Contractor’s demolition of the existing roof revealed that a significant section of the roof stem wall was missing.  The Contract did not address the contingency of a missing stem wall.  Contractor sent the Government several letters asking for guidance on how to proceed, including a request for information on structural requirements for building a stem wall.  The Government refused to provide the requested information, asserting that the terms of the contract allocated to the Contractor the risk of dealing with latent or unanticipated site conditions and the burden of devising a solution to the problem.


Continue Reading Court of Federal Claims Holds Contractor’s Duty to Continue Performance Under Disputes Clause May Be Excused Where Government Fails to Provide Information Necessary to Continue Performance

KBW Assocs. v. Jaynes Corp., 2015 U.S. Dist. LEXIS 18220 (D. Nev. Feb. 13, 2015)

This action arose out of the construction of additions to existing buildings at Creech Air Force Base in Indian Springs, Nevada (the “Project”).  The United States Army Corps of Engineers (the “COE”) contracted with Defendant Jaynes Corporation, Inc. (“Jaynes”) to perform the work.  Jaynes then subcontracted with Plaintiff, KBW Associates, Inc. (“KBW”), to construct the metal framing and outer shell of the buildings.

Following construction delays, Jaynes found itself involved in two separate actions.  In the first action (the “Prime Contract Litigation”), Jaynes was defending against liquidated damages assessed by the COE under the prime contract.  In the instant action (the “Subcontract Litigation”), Jaynes was defending a Miller Act suit for contract balances brought by KBW.  KBW alleged Jaynes was responsible for the construction delay, through a “pattern of mismanagement”, involving failure to timely approve work, unilateral imposition of work beyond the scope of the subcontract and improper scheduling.  Jaynes asserted several affirmative defenses and filed counterclaims against KBW, on grounds that KBW failed to perform in accordance with the subcontract and failed to meet construction schedules.


Continue Reading Federal District Court in Nevada Denies Contractor’s Motion to Stay Subcontractor’s Miller Act Suit Pending Resolution of Contractor’s Suit Against the Government

Total Eng’g, Inc. v. United States, 2015 U.S. Claims LEXIS 30 (Fed. Cl. Jan. 26, 2015) 

The United States Army Corps of Engineers (the “Government”) awarded a contract to Total Engineering, Inc. (“Total”) for preliminary site construction work for the United States Army Medical Research Institute of Chemical Defense Replacement Facility.  When failures occurred in a steam line system that Total had installed, the contracting officer issued a cure notice and ultimately terminated Total for default.
Total’s contract required it to construct a steam line system, consisting of steam and condensate lines anchored to parallel concrete piers inside a concrete trench.  During a hydrostatic pressure test, the Government noted cracks in the piers, pipe detachment from several concrete piers, and damage to an anchor support.  The parties disputed the cause of the failures.  Total contended that the Government’s faulty design caused the failures, and the Government alleged that deficiencies in Total’s work were to blame.


Continue Reading Court of Federal Claims Holds that Contractor’s Defense of Defective Specifications Is Not an Independent Claim Requiring Submission Under Contract Disputes Act