O&G Industries, Inc. v. University of Massachusetts Building Authority et al

Filing 93

Judge Rya W. Zobel: ORDER entered denying 71 Motion for Partial Summary Judgment (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 11-12032-RWZ

O&G INDUSTRIES, INC.
v.
UNIVERSITY OF MASSACHUSETTS BUILDING AUTHORITY
and R.G. VANDERWEIL & COMPANY, INC.

ORDER
January 30, 2014

ZOBEL, D.J.
This action arises out of the construction of a central heating plant on the
University of Massachusetts-Amherst campus. The construction manager, O&G
Industries, Inc. (“O&G”), sued the project’s owner, the University of Massachusetts
Building Authority (“UMBA”), for breach of contract, unjust enrichment, quantum meruit,
and negligent misrepresentation. UMBA now seeks partial summary judgment on
Count III of the complaint, in which O&G alleges breach of contract due to UMBA’s
failure to pay for “added commissioning costs, extended general conditions, and other
costs.” Docket # 1 at 5. UMBA argues that O&G’s claim for “extended general
conditions” beyond the project’s contractual completion deadline is precluded by a “no
damages for delay” provision in the parties’ contract. UMBA also contends that
because it already made payments to O&G for extended general conditions covering
March 2008 to April 2009 pursuant to bilaterally executed change orders, any

additional claim for general conditions for that 14-month period is barred by the
doctrine of accord and satisfaction. Finally, UMBA asserts that O&G’s claim for general
conditions is a “total cost claim” which must fail because O&G itself is responsible for a
portion of the costs.1 In response, O&G disputes that its extended general conditions
costs constitute “delay damages,” challenges the enforceability of the “no damages for
delay” provision, claims UMBA waived the provision through its conduct, argues that
the executed change orders were merely placeholders and were open to further
negotiation, and denies that it is bringing a total cost claim.
After oral argument and consideration of the parties’ papers, I find that these
arguments involve disputed issues of material fact regarding the contours of the
extended general conditions costs claimed by O&G and the parties’ conduct with
respect to delay, waiver, and the payment of change orders. As such, O&G’s claim for
extended general conditions cannot be resolved at this stage.
UMBA’s motion for partial summary judgment as to Count III (extended general
conditions) (Docket # 71) is DENIED.

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

January 30, 2014
DATE

1

Under the total cost method of proving and computing damages, “the contractor’s bid is
subtracted from the total costs incurred in performing the contract.” Tecom, Inc. v. U.S., 86 Fed. Cl. 437,
455-56 (Fed. Cir. 2009). This approach is disfavored and “may be used only when a plaintiff can
demonstrate that: (1) it is impractical to prove the actual losses; (2) the bid was reasonable; (3) the actual
costs were reasonable; and (4) the plaintiff is not responsible for the additional costs.” Id.

2