A mentor of mine once said that process and procedures can be more important than substance and results. Like solving a math problem, how you solve it is often more important than the answer itself. The same is true in resolving construction contract disputes with public owners.
Under a contract with the City of Baltimore, the Contractor agreed to complete an administrative dispute resolution process before suing the City. But, without first completing the administrative process, the Contractor sued the City. The Contractor tried to justify its lawsuit by arguing that the City had also agreed to follow an administrative process before it could assess liquidated damages and that the City was the first to breach the contract by not following that administrative process. (Being the first to breach the contract may excuse another party’s later breach of the same contract.)
The Court did not have to decide if the City first breached the contract because the Court decided the Contractor didn’t properly follow the administrative process before suing the City.
The Contractor has not lost the war, but it lost this battle, time, and money. Follow the process even if it appears unnecessary. As a math teacher might say, “show your work.”
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Jonathan J. Straw
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