State Highway Admin. v. Greiner Engineering Sciences, Inc.

State Highway Admin. v. Greiner Engineering Sciences, Inc.

Opinion

 [*622]   [**363]  Greiner Engineering Sciences, Inc., appellee, made a claim against the State Highway Administration (SHA), appellant, for $ 148,859.80 in delay damages incurred during preparation of construction contract documents for a highway project. Upon denial of its claim, appellee appealed to the Maryland State Board of Contract Appeals ¹ (BCA)  [*623]  which, following a de novo  [**364]  hearing, issued a written decision awarding appellee $ 111,644.00. The Circuit Court for Baltimore County (Turnbull, J.) affirmed the BCA decision.

 [***2]  ISSUES

Appellant asks this Court:

I. Whether the BCA erred by rewriting the contract to create an exception to the "no damages for delay" clause for delays not contemplated by the parties;

II. Whether the BCA finding that the delay was not contemplated by the parties, based solely upon the testimony of a witness who was not employed by SHA at the time the contract was executed, was supported by competent, material and substantial evidence;

III. Whether enforcement of the "no damages for delay" clause was unconscionable;

IV. Whether SHA was estopped from relying on the not-to-exceed clause in its contract with appellee;

V. Whether appellee's acceptance of extra work orders totalling $ 480,843.00 without reserving the right to file a later claim bars such later claim as a matter of law; and

VI. Whether appellee presented legally sufficient proof of damages where the BCA (1) retrospectively qualified as experts three witnesses who gave lay testimony; (2) accepted without analysis appellee's highly disfavored "total cost" proof of damages; and (3) arbitrarily reduced appellee's claim by twenty-five percent (25%) rather than dismiss the entire claim.

We address only the first and third [***3]  issues in this opinion. ²

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