Design/Build

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Metcalf Constr. Co. v. United States
742 F.3d 984 (Fed. Cir. 2014)

This action arose out of the design and construction of military housing units at a U.S. Navy facility in Hawaii.  Pre-bid documents for the project supplied by the government provided test information regarding soil conditions on the site.  The government also included a disclaimer that this information was “for preliminary information only” and the resulting contract required that the contractor conduct its own independent soil investigation.

Metcalf Construction Company (the “Contractor”) was awarded the contract.  When the Contractor conducted its independent soil investigation it discovered that the soil was not as represented.  The Contractor notified the government and discussions ensued.  In those discussions, the Contractor recommended a different design and construction approach to account for the newly uncovered conditions, while the government generally insisted on following construction requirements set out in the original contract.  After a year’s delay, the Contractor decided that the cost of waiting for the government to approve the design changes had become too high, and it began to implement those changes without a contract modification.  As a result, the Contractor spent approximately $26 million over the original contract amount to remedy the soil conditions and finish the project.

Argonaut Great Cent. Ins. Co. v. DiTocco Konstruction, Inc.
2007 U.S. Dist. LEXIS 93846 (D.N.J. Dec. 21, 2007)
After a fire destroyed a T.G.I. Friday’s restaurant and all of its equipment, the meaning of the subrogation continuation clause contained in the contract between the owner and the contractor who had performed renovations and remodeling of the restaurant five years earlier became the focal point of ensuing dispute.

Harborview Office Ctr., LLC v. Camosy Inc.
2006 Wisc. App. LEXIS 149 (Wis. Ct. App. Feb. 15, 2006)
Project owner Harborview entered into a contract for the construction of a three-story office building. After discovering significant water infiltration problems, Harborview filed suit against the parties who had provided services in its construction: the general contractor, the architectural firm, the installer of aluminum windows, and the installer of the Exterior Insulation and Finishing System (EIFS). Harborview alleged negligence and breach of contract against each and claimed that in order to resolve the water infiltration problem it would be necessary to remove and replace all of the building’s windows. Harborview hired an expert, who was an architect and engineer, to identify the causes of the problem, evaluate a correction process, and ultimately oversee the remediation process.

Sokaogon Gaming Enterprise Corp. v. Tushie-Montgomery Assocs, Inc.,
86 F.3d 656, 1996 U.S. App. LEXIS 13399 (7th Cir. June 5, 1996)
District Court erred in granting summary judgment in favor of Indian tribe on grounds of tribe’s sovereign immunity; by signing contract with explicit arbitration clause, tribe agreed that it could be sued.

Neal & Co., Inc. v. City of Dillingham and CH2M Hill Northwest, Inc.,
923 P.2d 89 (Alaska 1996)
In February of 1987, the City of Dillingham (“City”) solicited bids for the construction of a sewerage facility, which would include two lagoon ponds. CH2M Hill (“Hill”), the City’s engineer and on-site representative, had completed a geotechnical survey and data summary, which was provided to interested bidders. Neal & Company, Inc. (“NCI”) was declared the low bidder at $2,059,991 and began excavation on June 6, 1987.

Hazleton Area School District v. Bosak,
671 A.2d 277 (Pa. Cmwlth. 1996).
In this case, neither of the arbitration provisions provided in the 1988 and 1989 agreements specifically stated that an action in tort for negligence should be arbitrated. The Commonwealth Court affirmed the decision of the trial court and…

Danis Clarkco Landfill Co. v. Clark County Solid Waste Mgmt. Dist.,
653 N.E.2d 646, 73 Ohio St.3d 590, 1995 Ohio LEXIS 1869 (Ohio, September 6, 1995).
County solid waste management district was not subject to provisions of public bidding law in making “designation” of exclusive provider of solid waste management services, but was required only to adhere to bidding procedures it set for itself in its RFP. 
Danis Clarkco Landfill Company (“Danis”), a landfill operator, filed an action seeking declaratory and injunctive relief to prevent a county solid waste management district (the “District”) from designating a rival bidder as the sole provider of waste management services for the District. The District had prepared a Request for Proposal (“RFP”) seeking “proposals from qualified bidders to design, construct and operate solid waste management facilities” for the District.

Metric Constructors, Inc. v. Hawker Siddeley Power Engineering, Inc. and Panda Rosemary Corp.,
468 S.E. 2d 435 (N.C. Ct. App. 1996).
Defendant Hawker Siddeley Power Engineering, Inc. (HSPE) was the Design/Build contractor on a co-generation power plant in Roanoke Rapids, North Carolina. As the general contractor, HSPE subcontracted with plaintiff Metric Constructors, Inc. (Metric) for construction of the power plant. In turn, Metric subcontracted with a wholly-owned subsidiary, Electrical and Special Systems, Inc. (ESSI) for specialized work. Because all of the designs for the plant prior to the commencement of construction were not complete, the project was deemed “Fast Track.”
Pursuant to its contract with Metric, HSPE was responsible for engineering design drawings and procurement of major equipment items. The contract had an inflexible completion date of October 30, 1990 and, in contract negotiations and in the contract, HSPE promised to issue drawings at a pace that would allow Metric to finish its work on time. The contract further provided that Metric would receive a bonus of $9,000 per day for early completion.

Cleveland Jet Center, Inc. v. Structural Sales Corp.,
1995 Ohio App. LEXIS 4113 (Ohio Ct. App., Sept. 22, 1995).
Utilization of AIA Document A111, Standard Form of Agreement Between Owner & Contractor, 1978 Edition, without express incorporation of AIA Document A201, General Conditions of the Contract for Construction, left owner free to refuse arbitration. 
Cleveland Jet Center, Inc. (“Jet Center”), a corporation in the business of repairing, refurbishing and modifying jet aircraft, entered into a contract with Structural Sales Corp. (“Structural”), in which Structural agreed to design and build a hangar and office area at the Lost Nation Airport in Willoughby, Ohio. Structural selected the American Institute of Architects (“AIA”) Document A111, Standard Form of Agreement Between Owner & Contractor, 1978 Edition” as the contract form and drafted the blank terms.