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An architect proved that it was entitled to be compensated for additional services it provided as a result of the construction contractor’s delay in completing work.  Due to the delay, the A/E performed extra duties such as responding to questions from subcontractors; responding to lengthy punch lists; preparing lists and information that the contractor was supposed to provide; and providing extended inspections.  Using the A/E’s records, however, it was impossible to differentiate between performance of basic services and additional services.  For this reason, no recovery was awarded.

The project owner argued that the A/E had not provided additional services and was not entitled to recover.  It based its argument on an incorrect reading of the contract.  According to the Owner, the A/E was required to perform basic services for 60 months.  It also argued that the A/E was required to perform basic services until the issuance of final payment – apparently even if that were beyond 60 months.   What the contract actually provided, according to the court, was that the A/E was “to provide basic services until final payment or 60 days after substantial completion of the work.

Another paragraph of the contract, however, “entitles [A/E] to recover for additional services made necessary by [contractor’] failure to perform.”  Since the contractor was found, through arbitration, to be in default, and since “it appears that there were substantive problems with construction performance” the court found the requirements of the contract entitling the A/E to compensation were satisfied.

Having won the battle on the merits, the A/E lost the war by failing to prove the amount of its damages.  He “did not keep daily time records of the tasks he performed, nor did he have detailed records of his time spent on contingent additional services.” “At trial , [he] submitted an exhibit containing pages from a computer-generated calendar showing the individual days and hours he spent on the school project.  However, there were no specific tasks listed.  The entries merely say ‘Construction Contract Administration.’”  The inadequate records precluded the court from evaluating how many hours the A/E dedicated to contingent additional services.  For this reason, the A/E lost its case at both the trial court and on appeal.  Allen Belot Architects v. Unified School District, Douglas County, KS, 4 P.3d 626, Kansas App. (April 14, 2000).

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 2, No. 10 (Oct 2000).

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