Thus, an agency can be estopped from enforcing the liquidated damages clause.
Similarly, either party to a public works contract can waive any benefit under the contract (.
[boldface added] The all-or-nothing approach is appropriate when the contract fails to prescribe the conditions or events that determine which party is responsible for what delays in the project.
(versions of this article appeared in the ECA Magazine, April and May 2003, p.
17 both issues) Every public works project that overruns the contract time, as extended, enters into the realm of liquidated damages.
Sometimes the court must first determine whether one of the specified events or conditions occurred, , did the public agency really order extra work for which a change order should have been issued, including an appropriate time extension. “The law required that some provision for liquidated damages be inserted … The fact that the government’s action caused some of the delay presents no legal ground for denying it compensation for loss suffered wholly through the fault of the contractor … In that event though the owner causes delay the builder is liable in liquidated damages, but the period of delay caused by the owner is deducted from the total delay.
This analysis of discrete delays under the standards established in the contract often results in a remission of some or all of the liquidated damages withheld by the agency. That case involved a contract which provided for both liquidated damages and extensions of time… In holding that apportionment was proper the court stated at page 488 [67 L. Unless the contract contains such a provision the delay due to each party will not generally be apportioned.” [italics in the original; bold face added] In other words, when the contract prescribes events and conditions for which the original contract completion date must be extended, the courts enforce this language by inquiring into every delay to determine whether it qualifies under the contract language for a time extension.
the proper execution, progress or sequence of the work …
the decision of the Chief Engineer shall be final and binding”) waived 113 days of liquidated damages (for district actions preventing site access, for excavation extra work and for inclement weather).(1952) 113 CA2d 873, 878, 249 P2d 301 [lease provision prohibiting waivers not made in writing was, itself, waived; “[e]ven a waiver clause may be waived by conduct.”]).Once a right is waived, it generally cannot later be asserted ( (1987) 190 CA3d 521, 534, 234 CR 795 [“A right that is waived is lost forever”]).There are many reasons why liquidated damages may not be enforced, but they generally involve just a few legal concepts: (1) Whether any damages actually were suffered; (2) Whether the prescribed liquidated damages meet minimum requirements for reasonableness; (3) Whether the contract language requires the all-or-nothing or apportionment-of-delay analysis; (4) Whether liquidated damages are barred by acts or omissions of the owner which prevented timely performance, amount to a waiver, or estop the owner from enforcing the liquidated damages provision.Actual Damages and Reasonableness Before there can be any liquidated damages, there have to be actual damages.The liquidated damages must be a forward-looking attempt, as of the day the contract was signed, to estimate what the dollar amount of those actual damages would be. Code §§ 1442; (1954) 126 CA2d 381, 385, 271 P2d 397).