- Posted by Brett M. Hill
- On January 3, 2008
Biwell Construction commenced suit for a delay claim in the amount of $13,217.89 and its unpaid contract balance, $34,893, against the City of Seattle. The contract provided that if Biwell’s performance was delayed, it had five days following the event giving rise to the delay to request a time extension, and 20 days to submit documentation supporting the request and any delay damages. The contract provided that any failure to comply with this procedure constituted a waiver of delay damages. If the request by Biwell was denied, the contract further required a protest, a claim, and mediation prior to filing suit. The City moved for summary judgment, arguing that Biwell failed to comply with the contract’s dispute resolution procedures. The trial court dismissed Biwell’s claims. On appeal, Biwell did not challenge the dismissal of its delay claim. However, Biwell did challenge the dismissal of its claim for money due under the contract. The City could not point to any dispute resolution provisions, similar to those that barred Biwell’s delay claim, that would bar Biwell’s claim for its contract balance. The City did contend that Biwell’s claims were barred because it did not file suit within 180 days of the completion date, as required by the contract. The contract defined “completion date” as follows: The date, certified in writing by the Owner, when the Work specified in the Contract Documents is completed and all the obligations of the Contractor under the contract were fulfilled by the Contractor. All documentation required by the Contract and required by law must be furnished by the Contractor before establishment of this date. The City contended that the contract was completed when it terminated Biwell’s performance. The Court noted that while this may be true as a practical matter, the “completion date” is defined in specific terms in the contract. The Court found that the record did not support the City’s contention that it was entitled to judgment as a matter of law that Biwell failed to timely commence its suit.