Image Credit: Triton.
Contractor hired to repair Hurricane Sandy damage failed to list dispute when seeking time extensions on project. In 2009, the Department of Design and Construction awarded Triton Structural Concrete, Inc. a $105,003,443 contract to rebuild and repair various beachfront structures in Brooklyn, Queens and Staten Island that were damaged by Hurricane Sandy. The contract required Triton to install prefabricated modular buildings on driven pile foundations along several sections of the beachfront.
On June 25, 2013, the DDC notified Triton that over 200 concrete piles did not meet contract requirements because they either took longer to pour than the standard 90 minutes or had strength issues.
Between July 2013 and June 2014, Triton submitted four time extension requests, but did not list the dispute with the DDC on the non-conforming concrete. At the time, Triton was in a dispute with the subcontractor that poured the piles. In August 2014, Triton submitted a change order request to the DDC for repairs to the concrete piles. The DDC project manager rejected the request.
On August 21, 2015, Triton submitted a notice of claim to the Comptroller for $790,125.36 for extra work to replace the concrete piles. The Comptroller denied the claim in April 2016 on the grounds that the claim was untimely and that Triton had failed to reserve its claim in the time extension applications.
Triton appealed to the Contract Dispute Resolution Board, arguing that the claim did not need to be listed until after Triton had submitted a change order for the concrete work in September 2014 because there was no clear dispute about the money owed before the order. Alternatively, Triton argued that the claim was not ripe until the DDC’s written determination in April 2015.
The CDRB rejected Triton’s claim, holding that the claim was properly denied because Triton failed to reserve its claim. The claim ripened when the DDC informed Triton in June 2013 that the concrete piles were non-conforming, and was therefore pending at the time of the extension request. The CDRB rejected Triton’s argument that a claim could not be preserved until the specific monetary amount was actually determined. The catchall phrase inserted by Triton that it reserved “any work that may become subject of a dispute” was too broad to reserve the claim.
Triton Structural Concrete, Inc. v. Dep’t of Design and Constr., OATH Index No. 2362/16 (Jan. 18, 2017) CITYADMIN
By: Aaron Ladds (Aaron is a student at New York Law School, Class of 2019)