Contractors must strictly follow the state's Road, Bridge and Municipal Construction standards or risk forfeiting contractual claims
In an unpublished opinion filed February 20, 2024,[1] Division 1 of the Washington Court of Appeals held in C.A. Carey Corporation v. City of Snoqualmie that compliance with the WSDOT Standard Specifications for Road, Bridge and Municipal Construction was mandatory. Citing prior precedent, the Court reiterated that contractors are required to strictly comply with the mandatory protest and claim procedures even when the owner has actual notice of the protest or claim. The Court rejected the contractor's contention that a "substantial compliance" standard would apply to the mandatory notice, protest, and claim provisions. Absent waiver, the Court held that contractors must follow the specific requirements of the notice, protest, and claim provisions in order to preserve their contractual claims for litigation.
The Court proceeded to identify numerous provisions in the WSDOT standard specifications and explained how the contractor did not strictly comply with one or more of the detailed elements required for strict compliance with the provision. The Court ultimately held that Carey did not demonstrate any genuine issue of material fact as to whether it complied with the mandatory procedures in order to preserve its claims and therefore upheld the trial court's summary judgment order in favor of the City.
The WSDOT standard specifications contain very detailed procedural steps which must be followed to assert a construction claim. Other construction contracts contain equally detailed procedural steps to assert a construction claim. Strict compliance with some of these steps may be very difficult and time-consuming, but failure to timely and fully comply with the procedural steps is a trap for the unwary.
Takeaways
Prior to even beginning a construction project, a contractor should ensure its project manager and superintendent are well versed in the protest, notice, and claim procedures of the applicable specifications. The project team should be warned that failure to strictly comply with those procedures could result in the forfeiture of legitimate construction claims.
[1] Unpublished opinions of the Washington Court of Appeals have no precedential value and are not binding upon any court. However, unpublished opinions may be cited as non-binding authority and may be accorded such persuasive value as the court deems appropriate.
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