City Island Bridge, Bronx. Credit: Wikimedia Commons/Jim Henderson
Tutor Perini sought §22,941,971.68 for a two-year delay caused by a court injunction. In 2013, Tutor Perini Corporation entered into a $102 million contract with the Department of Transportation to replace the City Island Road bridge that spans Eastchester Bay between the Bronx and City Island. A state court injunction delayed the construction of the bridge for two years and forced the redesigning of the bridge.
In 2018, Tutor Perini submitted four requests to the Department of Transportation to adjust the final cost of the project due to additional expenses resulting from the two-year delay. When DOT’s Commissioner did not respond to its request, Tutor Perini submitted four notices of claims to the City Comptroller. The Comptroller denied all claims, ruling that the claims were delay damages that fell outside the contract dispute resolution provision of Article 27 of the contract between parties. Article 27 stated that “the contractor agrees to make no claim for damages for delay in the performance of this contract occasioned by any act or omission to act of the City or any of its representatives….”
Tutor Perini brought its claim before the Contract Dispute Resolution Board seeking $22,941,971.68 in additional compensation from DOT. Tutor Perini argued that it did not seek delay damages because the state Court injunction caused the delay, not an act or omission of the City, and that the “no damages for delay” provision of the contract did not apply. Tutor Perini also emphasized that DOT approved four extensions to finish the project.
The Contract Dispute Resolution Board dismissed Tutor Perini’s claim, ruling that its contract with the City barred Tutor Perini’s claim and it was not within the Board’s jurisdiction to adjudicate. The Board explained that the root cause of the claim was delay even though Tutor Perini characterized its claim otherwise. The request for equitable adjustment in price for a cost was a request for delay damages, and the Board did not have the power to grant equitable relief. The Board rejected Tutor Perini’s claim that the contract clause only applied to delays caused by the City. The Board ruled that if a delay disrupted the contractor’s manner of performance or extended the time of completion, the claim falls within the delay damages clause of the contract.
Tutor Perini Corp. v. Dep’t of Transportation, OATH Index No. 2254/19 (Oct. 2, 2019). CITYADMIN
By: Katerina S. Pluhacek Garcia (Katerina is a New York Law School student, Class of 2022.)
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