Dimwit has refused to issue Change Orders for other work, claimed to be “extra” by Wackinsmack. Included in the pile of refused change orders, are two “Field Directives” issued by Dimwit’s Engineer (Ithinkican Engineering Consultants, Inc.) which the Owner feels are not changes; a claim for Differing Site Conditions, which Dimit says Wackinsmack should have known about; and, the discovery of hazardous “contamination” in the excess excavated soil materials which had to be trucked off the site and disposed of (which Dimwit feels is Wackinsmack’s contractual responsibility).

The accumulation of changes, including those for which Dimwit has not agreed, has resulted in delays to the project. Wackinsmack failed to achieve Substantial Completion of the work by the Contract End Date (as adjusted by approved change orders). As a result Dimwit has assessed liquidated damages against Wackinsmack for late completion. Wackinsmack has, in turn, assessed Acme for 53% of the liquidated damages based on Acme’s proportionate share of the prime contract price.

One of the disputed Work Orders involves the direction by Ithinkican to relocate some of the process piping (work performed by Acme) to avoid conflicts with other aspects of the design. Ithinkican has advised Dimwit that this work was part of the contractor’s “methods and means” responsibility and is not an extra. Acme performed the work and claims $350,000 in extra costs.

Assumption:

Assume that, as a result of all of the changes, including the disputed work order, the project has been delayed by 200 calendar days. If the Contract End Date were to be enlarged by 200 calendar days, the project would have been completed on time, and there would be no basis for Dimwit to assess liquidated damages.

Essay Assignment:

Please prepare a letter to Dimwit asserting Wackinsmack’s view that it is entitled to an excused, compensable delay and enlargement of the Contract End Date, and that Dimwit should rescind its assessment of liquidated damages.