University of Toledo Beats Delay Claim on Technicality
Kegler Brown Construction Newsletter March 1, 2016
Contractors on Ohio public works projects are expected to comply with the State’s detailed and onerous claim process when they seek additional time or money for delay. And contractors have been hugely unsuccessful in recent years when they fail to provide timely notice, and later complain that compliance is “impossible” or that applying these provisions would be “unfair” or “inequitable”.
Another example is provided by the case of IPS Electric Services v. Univ. of Toledo decided by the Franklin County Court of Appeals on February 2, 2016. In that case, the trial court found the electrical contractor waived his claim because he did not comply with his Article 8 requirements for timely submitting and documenting a claim. The Court of Appeals upheld that ruling and did not provide relief because “courts cannot decide cases of contractual interpretation on the basis of what is just or equitable.”
Once again the moral of the story is that contractors need to provide timely notice and substantiation of their claims or demonstrate that: (1) the State waived the relevant contract provisions; or (2) the State prevented performance or breached the contract first; or (3) the relevant contract provisions are void as against public policy, such as the Fairness in Construction Contracting Act. Contractors who fail to do so proceed at their own peril.