Beware of the Contract “Fine Print”
Kegler Brown Construction Newsletter May 1, 1995
A New Jersey clean up contractor on the Franklin County Convention Center project learned the hard way that the fine print of a contract can come back to haunt you. The contractor agreed to remove 140 cubic yards of contaminated soil for $165,000 but the contract allowed for additional payment if the contamination was greater than anticipated. There was a unit price in the contract for additional work, but there was supposed to be written approval of the owner before undertaking any unit price work.
The contractor removed another $900,000 worth of contaminated soil, supposedly upon the verbal authority of the owner's environmental consultant, but never received written authority for this unit price work. Therefore, Judge Thompson of the Franklin County Common Pleas Court, in a harsh result, ruled that the contractor was barred from recovering for the extra work performed on a unit price basis.
In a similar case, the Court of Appeals for Hardin County ruled that a contractor was not entitled to recover $365,000 for additional roofing labor and material where he had never submitted a written change notice to the owner as required by the contract. Associated Main. & Roof v. Rockwell (1993), 94 Ohio App.3d 638.
These decisions emphasize the need to thoroughly review and understand all contract provisions and to strictly comply with any written notice provisions that are required.