Paige Scott | Schwabe Williamson & Wyatt | October 2, 2018<\/p>\n
The Supreme Court of the State of Washington issued its opinion in\u00a0Nova Contracting \u200eInc. v. City of Olympia<\/em>, Docket No. 94711-2 on September 27, 2018, which hammers home the \u200eneed for contractors to review the notice provisions in their contracts. The Washington Supreme \u200eCourt held that\u00a0the contractor\u2019s failure to strictly comply with the notice provision \u200eapplied to the contractor\u2019s subsequent claims for the cost of the work actually completed \u200eunder the contract but also to the contractor\u2019s claims for expectancy and consequential \u200edamages<\/strong>\u00a0(the Court declined to address the availability of an equitable exception to the notice \u200eprovisions).<\/p>\n Put simply, the burden has been placed on all contractors to not only understand contractual notice provisions but also\u00a0strictly comply<\/em>\u00a0with such provisions, or risk losing the ability to seek damages should a disagreement arise over their work.<\/p>\n The Washington Supreme Court\u2019s decision focused on the standard specification section 1-04.5 of the Washington State Department of Transportation\u2019s (\u201cWSDOT\u201d)\u00a0Standard Specifications for Road, Bridge, and Municipal Construction<\/em>\u00a0(2012).\u00a0 As many contractors performing public work in Washington know, WSDOT\u2019s specification section 1-04.5 provides that if the contractor \u201cdisagree[s] with anything required in a change order, another written order, or an oral order from the [City] Engineer, including any direction, instruction, or determination by the Engineer, the Contractor\u00a0shall \u2026 immediately<\/em>\u00a0give a signed written notice of protest to the Project Engineer \u2026\u201d (emphasis added).<\/p>\n Importantly, section 1-04.5 further provides that\u00a0by not giving notice<\/strong>, the contractor \u201cwaives any additional entitlement and accepts from the Engineer any written or oral order<\/strong>\u00a0(including directions, instructions, interpretations, and determinations).\u201d\u00a0 If a contractor fails to strictly comply with this section, i.e., submit a signed written notice of protest to the Project Engineer over\u00a0any<\/em>\u00a0disagreement, then the contractor will be barred from seeking relief, including subsequent claims for the cost of the work actually completed, expectancy, and consequential damages.\u00a0 This \u201cbarrier\u201d has severe implications on a contractor\u2019s bottom line and ability to seek recovery should a disagreement arise.<\/p>\n