affirmed a trial court judgment that denied a contractor’s claim
where the contractor failed to provide written notice of the
claim in accordance with the contract.
The court stated that the owner’s knowledge of the conditions underlying the contractor’s claim for additional compensation or other damages was insufficient to alter the terms of
The court recognized that, traditionally, “notice provisions in a
contract [are] treated as conditions precedent, and failure to
satisfy the condition of notice [bars] a claim on the contract regardless of whether the lack of notice caused any prejudice.”
While not relating specifically to written notice requirements,
the Ohio Supreme Court mandates strict enforcement of contractual conditions that require an executed change order before
proceeding with extra work.
In Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Authority, 78 Ohio St. 3d 353 (1997), the
Ohio Supreme Court issued a very clear statement about complying with contractual obligations relating to changes in the
a written change order to authorize compensation for additional work.
The court stated that it is “universally recognized” that a contract clause that requires written approval for extra work is
binding, unless waived by the owner. The court made clear,
however, that mere knowledge or acquiescence does not
amount to a waiver, nor can an architect or engineer on a public project waive the contract requirements (in the absence of
express authority to do so).
In fact, according to the court, a written change order requirement may only be waived in writing or by clear and convincing evidence such that there is no doubt.
Prudence dictates that project participants presume that a
court or arbitrator will strictly construe the terms of the contract regarding the initiation and perfection of a claim (
including the timing of notice, the form of notice, and the substance
of notice or claim supplementations).
Therefore, contract requirements must be followed to the letter. In the event a contract’s requirements are unclear, written
continued on page 44
Foster Wheeler (an environmental hazards remediation contractor) was the low
bidder for a project that involved the removal and remediation of a large container of coal tar waste and fill buried in
Foster Wheeler encountered significantly
more waste quantity than the estimated
quantity in the contract documents, and
it provided verbal notice of the additional
quantities to the owner and to its consulting engineer (per the owner’s request).
Like Moraine Materials, there was little
dispute that the owner and its engineer:
1) were fully aware that Foster Wheeler’s
removal/remediation of the additional
waste was extra work outside the scope
of the original contract and 2) knew that
the extra work was being performed.
The Ohio Supreme Court denied Foster
Wheeler’s claim for the additional costs to
excavate additional quantities because the
contract between Foster Wheeler and the
owner contained a provision that required
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