This bulletin is a follow-up to our Friday, September 21st bulletin and is intended to give you guidance on responding to MDOT’s letter denying requests to suspend projects and notices or actual requests for time extensions or additional compensation. The MDOT letter may be from a Local Agency if you are working on a MDOT let Local Agency project.
In their response letters MDOT indicates that “based on the information currently provided” it has not been demonstrated that a delay due to the defensive lockout of the International Union of Operating Engineers, Local 324 (OE 324) is an “excusable” delay as defined in subsection 108.08 of the Standard Specifications for Construction.
MITA still believes that we have a strong legal basis that will demonstrate to MDOT that the defensive lockout of OE 324 is an “excusable” delay as defined in subsection 108.08 of the Standard Specifications for Construction. We are hopeful that once we have demonstrated this legal basis to MDOT they will change their position and contractually deal with this defensive lockout as an “excusable” delay in accordance with subsection 108.08 (i.e., extensions of time will be approved without the assessment of liquidated damages).
Linked below is a sample letter we have prepared for your use to submit your Notice of Intent to File Claim for MDOT’s denial of an extension of time without the assessment of liquidated damages.
Click here for a sample Notice of Intent to File Claim letter.
MDOT’s denial of all notices of intent to claim additional compensation was not unexpected, as we have acknowledged in prior bulletins that the MDOT Standard Specifications for Construction do not include “labor disputes” as a “compensable delay” in subsection 108.09.B, and that you should not anticipate you will receive additional compensation for costs incurred or related to a labor dispute delay. A contractor’s evaluation of valid claims for additional compensation can be made subsequent to a return to work and in accordance with subsection 104.10 of the Standard Specifications for Construction.
If you have any questions, please contact Mike Nystrom, Executive Vice President, at 517-896-1493 or Glenn Bukoski, Vice President of Engineering Services, at 517-256-0741.
