C.a. Carey Corporation, V. City Of Snoqualmie ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
C.A. CAREY CORPORATION, a
Washington corporation, No. 84602-7-I
Appellant, DIVISION ONE
v. ORDER GRANTING MOTION
TO PUBLISH
CITY OF SNOQUALMIE, a
Washington municipal corporation,
Respondent.
Amicus curiae, Washington State Association of Municipal Attorneys, and
non-party, Stoel Rives LLP, each filed a motion to publish on March 12, 2024. A
panel of the court called for an answer to the motions on March 21, 2024.
Respondent, City of Snoqualmie, filed an answer on April 5, 2024. After review of
the motions and answer, a panel of this court has determined that the motions to
publish should be granted.
Now, therefore, it is hereby
ORDERED that the motions to publish are granted.
FOR THE COURT:
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
C.A. CAREY CORPORATION, a
Washington corporation, No. 84602-7-I
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
CITY OF SNOQUALMIE, a
Washington municipal corporation,
Respondent.
HAZELRIGG, A.C.J. — C.A. Carey Corporation appeals from the trial court’s
grant of the City of Snoqualmie’s motion for summary judgment dismissal of its
claims against the municipality based on a public works contract. Because there
is no issue of material fact as to the contractor’s lack of compliance with the
mandatory notice, protest, and claim provisions of standard specifications
expressly incorporated into the contract, its causes of action are barred as a matter
of law. We affirm.
FACTS
In February 2014, the City of Snoqualmie advertised construction bids for
the public works contract of the “Town Center Infrastructure Improvements Phase
2A Project” (project). The project involved improvements to downtown
Snoqualmie, including installation of a new water main, storm drainage system,
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undergrounding of power, cable, and phone lines, and roadway paving. Following
the public bidding process, the contract was awarded to C.A. Carey Corporation
(Carey) on April 28, 2014 as the lowest responsive, responsible bidder. On May
12, 2014, the City and Carey entered into a public works agreement (contract) for
the project. Pursuant to the contract, Carey was obligated to “achieve substantial
completion of all [w]ork required by the [c]ontract [d]ocuments[1] within 180 working
days” for the principal sum of $4,282,653.42.
The contract incorporated the 2012 Washington State Department of
Transportation (WSDOT) publication “Standard Specifications for Road, Bridge,
and Municipal Construction” (standard specifications). The standard specifications
are uniform requirements for public works agreements that provided the general
terms of the contract between the City as the contracting agency and the
contractor, Carey. Among the requirements are mandatory notice and claim
procedures that govern the specific process that must be followed when a
contractor seeks additional time or payment on a project.
On May 12, 2017, Carey filed a complaint against the City for breach of
contract, breach of the implied covenant of good faith and fair dealing, and breach
of implied warranty of design. In its breach of contract claim, Carey alleged that
the City failed to acknowledge known defects in the project design, failed to pay
for the increased costs of construction, and failed to award additional contract time
Carey said became necessary due to numerous design changes. On June 26, the
1 The contract provided that “Contract Documents” included, among other things, contract
plans and standard specifications, as well as amendments to the standard specifications.
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City filed its answer to the complaint and a counterclaim that asserted Carey had
breached the contract by “failing to timely and/or properly perform its work.”
On September 27, 2019, both parties moved for summary judgment. A
hearing on the motions took place on October 25 and the trial court heard argument
from counsel for the City and Carey. Carey conceded that all three causes of
action in its complaint arose from the contract and thus would rise and fall together.
On November 4, the judge entered a written order that granted the City’s motion
for summary judgment and dismissed each of Carey’s claims. The trial court
concluded that Carey had waived the right to pursue its claims because it failed to
comply with the standard specifications, particularly the mandatory notice, protest,
and claim provisions in sections 1-04.5 and 1-09.11 of the standard specifications.
Because the requirements of those provisions are “conditions precedent to
litigation,” the trial court concluded that dismissal of Carey’s complaint was
required.
On November 13, Carey moved for reconsideration pursuant to CR 59(7)
and (9) and requested that the trial court vacate its summary judgment order. The
following day, Carey submitted an amended motion for reconsideration. In support
of its motion, Carey included additional evidence in the form of numerous exhibits
attached to a declaration. On December 3, the judge denied reconsideration. In
the written order, the court explained that it did not consider the supplemental
exhibits submitted with the motion because Carey offered “no grounds to support
consideration of additional evidence” as required by CR 59(a)(4).
Carey timely appealed.
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ANALYSIS
I. Summary Judgment Dismissal
Carey assigns error to the trial court’s order granting the City’s motion for
summary judgment dismissal. According to Carey, the court erred by applying a
strict compliance standard to determine whether Carey adhered to the standard
specifications, improperly interpreting the claim limitation and final contract
voucher certification provisions, and “enforcing strict contractual notice and claim
requirements against Carey” when “the City was the first party to breach.”
“On appeal of summary judgment, the standard of review is de novo, and
the appellate court performs the same inquiry as the trial court.” Lybbert v. Grant
County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). “The court must consider all facts
submitted and all reasonable inferences from the facts in the light most favorable
to the nonmoving party.” Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wn.2d
891, 897, 874 P.2d 142 (1994). “A court may grant summary judgment if the
pleadings, affidavits, and depositions establish that there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law.”
Lybbert, 141 Wn.2d at 34; see also CR 56(c). “A genuine issue of material fact
exists where reasonable minds could differ on the facts controlling the outcome of
the litigation.” Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d
886 (2008). “However, bare assertions that a genuine material issue exists will not
defeat a summary judgment motion.” Trimble v. Wash. State Univ., 140 Wn.2d 88,
93, 993 P.2d 259 (2000).
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“The ‘touchstone of contract interpretation is the parties’ intent.’” GMAC v.
Everett Chevrolet, Inc., 179 Wn. App. 126, 134, 317 P.3d 1074 (2014) (internal
quotation marks omitted) (quoting Realm, Inc. v. City of Olympia, 168 Wn. App. 1,
4-5, 277 P.3d 679 (2012)). “Washington courts follow the objective manifestation
theory of contracts, imputing an intention corresponding to the reasonable
meaning of the words used.” Realm, 168 Wn. App. at 5. “Contract interpretation
is a question of law when, as here, the interpretation does not depend on the use
of extrinsic evidence.” Id. When the contract is unambiguous, “summary judgment
is proper even if the parties dispute the legal effect of a certain provision.” Voorde
Poorte v. Evans, 66 Wn. App. 358, 362, 832 P.2d 105 (1992).
A. Compliance With Standard Specifications is Mandatory
Carey concedes that the contract expressly incorporated the 2012 edition
of the WSDOT “Standard Specifications for Road, Bridge and Municipal
Construction.” “If the parties to a contract clearly and unequivocally incorporate by
reference into their contract some other document, that document becomes part
of their contract.” Satomi Owners Ass’n v. Satomi, LLC, 167 Wn.2d 781, 801, 225
P.3d 213 (2009). Thus, while acknowledging that the mandatory notice, protest,
and claim provisions of the standard specifications are part of this contract, Carey
argues that it was not required to strictly comply with those provisions. According
to Carey, “Washington courts employ a substantial compliance standard to decide
whether the contractor’s notices, protests, and claims satisfied the contract’s
substantive requirements.” (Emphasis omitted.) This is incorrect.
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Our Supreme Court, “as well as the state appellate courts, has historically
upheld the principle that procedural contract requirements must be enforced
absent either a waiver by the benefiting party or an agreement between the parties
to modify the contract.” Mike M. Johnson, Inc. v. County of Spokane, 150 Wn.2d
375, 386-87, 78 P.3d 161 (2003); see also Absher Constr. Co. v. Kent Sch. Dist.
No. 415, 77 Wn. App. 137, 142, 890 P.2d 1071 (1995) (“Washington law requires
contractors to follow contractual notice procedures, unless those procedures are
waived.”). In Mike M. Johnson, the court explained that contractors are required
to comply with the mandatory protest and claim procedures even when the owner
has actual notice of the protest or claim. 150 Wn.2d at 387-88. Due to the
contractor’s failure to comply with those requirements, the court held that summary
judgment dismissal of its contractual claims was proper. Id. at 392-93.
The court has reiterated that “absent waiver, failure to comply with
contractual procedures bars relief.” American Safety Cas. Ins. Co. v. City of
Olympia, 162 Wn.2d 762, 770, 174 P.3d 54 (2007) (citing Mike M. Johnson, 150
Wn.2d at 391). In American Safety, the contract incorporated the standard
specifications issued in 2000, Id. at 764 n.3, and American Safety failed to follow
both the notice and claim procedures and brought its cause of action beyond the
180-day time period allowed. Id. at 764-65. “Because American Safety admittedly
did not comply with the contractual provisions, and because the City [of Olympia]
did not unequivocally waive its right to demand compliance with these provisions,”
the court held that summary judgment in favor of the City of Olympia was
appropriate. Id. at 771-72. More recently, our Supreme Court referenced Mike M.
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Johnson as a “rule of strict compliance.” NOVA Contracting, Inc. v. City of
Olympia, 191 Wn.2d 854, 867, 426 P.3d 685 (2018). In NOVA, which addressed
the same 2012 standard specifications at issue here, the court held that the
contractor’s claim was barred because the contractor failed to “immediately” file
the written notice of protest to preserve the claims as required by section 1-04.5.
Id. at 856, 870-71.
Contrary to Carey’s contention in briefing, there was no “substantial
compliance” standard applied in either Weber Construction Inc. v. County of
Spokane, 124 Wn. App. 29, 98 P.3d 60 (2004) or Realm, 168 Wn. App. at 1. In
Weber, the parties contracted to build a road, but after excavation began, Weber
discovered several large boulders that were “unsuitable for fill and embankments.”
124 Wn. App. at 31. Weber then needed to obtain fill from another site, which
increased the costs and delayed the project. Id. Weber sought additional
compensation and asked Spokane County how to dispose of the large boulders as
that information was necessary for Weber in order to provide a cost estimate. Id.
at 34. Despite Weber’s written request, the County failed to provide the information
and thus Weber could not provide a cost estimate as required by the protest and
claims provisions. Id. On review, the court emphasized the following: “The County
knew that Weber was required to provide a dollar cost estimate. It knew Weber
was aware of this requirement and was attempting to meet it. Weber requested
needed information in order to provide that estimate, but the County failed to give
it to Weber.” Id. at 35. Accordingly, the court held that Weber “strictly complied
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with protest and claim procedures and that the County, by its conduct, waived strict
compliance in any event.” Id.In Realm, the parties entered into a contract for Realm to build a tunnel for
the City of Olympia (Olympia) that would serve as a salmon passage. 168 Wn.
App. at 3. After Realm began work on the project, the municipality ordered Realm
to stop and terminated the contract. Id. Thereafter, Realm submitted a claim for
work performed on the project up to the point of termination, but Olympia
concluded that it only owed Realm approximately half the amount sought. Id.Ultimately, Olympia unilaterally issued the change order and sent Realm a check
for the amount it believed was owed as the full and final payment, which Realm
cashed. Id. Realm then sued Olympia for breach of contract and sought the full
amount it had claimed. Id. The trial court dismissed Realm’s claim on summary
judgment and Division Two of this court affirmed. Id. In reviewing the standard
specifications at issue, this court determined that Realm failed to follow the notice
requirements of sections 1-04.5, 1-08.10(3) and (4). Id. at 8. Moreover, as section
1-04.5 alone “provides that a contractor accepts all requirements of a change order
by failing to protest” and Realm did not protest Olympia’s change order setting final
payment, the court held that Realm “waived its right to sue under the contract.” Id.
at 9.
Neither Weber nor Realm even reference a substantial compliance
standard for the mandatory notice, protest, and claim provisions, much less
establish one through an express holding. Carey points to a section in Realm
where the court discusses Weber and notes that “[i]f Realm had shown some good
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faith effort to comply with section 1-04.5, we might reach a different result.” Realm,
168 Wn. App. at 11. Realm categorized Weber’s failure to provide the cost
estimate as required in section 1-04.5 as a “technical failure” and stated that “[h]ad
Realm made a similar technically defective attempt to comply with section 1-04.5,
we might be persuaded that it provided sufficient evidence of compliance with the
contract to escape summary judgment.” Id. (citing Weber, 124 Wn. App. at 34).
Such a “technically defective attempt” to comply with section 1-04.5 would require
a timely notice of protest with an explicit request for the specific information
necessary to provide a component of the written supplement. A passing reference
to “sufficient evidence of compliance” does not mean substantial compliance and
certainly does not change the controlling legal standard; again, Weber held that
the contractor “strictly complied with protest and claim procedures and that the
County, by its conduct, waived strict compliance.” 124 Wn. App. at 35 (emphasis
added).
As these cases make clear, contractors must follow the specific
requirements of the notice, protest, and claim provisions in order to preserve their
contractual claims for litigation. Thus, unless Carey complied with those
procedural requirements as provided in the 2012 standard specifications, its claims
arising under this contract are waived as a matter of law.
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B. Change Orders
Pursuant to section 1-04.4 of the standard specifications, the City’s
engineer2 is allowed to make alterations to the scope of the contractor’s work
without invalidating the contract. Among others, these changes include increasing
or decreasing the quantity of work, altering specifications and/or designs, changing
the way the work is done, adding or removing work, altering facilities, services, or
equipment, and requiring the contractor to speed up or delay the work. W ASH.
STATE DEP’T OF TRANSP., PUB NO. M 41-10, STANDARD SPECIFICATIONS FOR ROAD,
BRIDGE, AND MUNICIPAL CONSTRUCTION § 1-04.4, at 1-20 (2012) (STANDARD
SPECIFICATIONS), wsdot.wa.gov/publications/manuals/fulltext/M41-10/SS2012.pdf
[https://perma.cc/77X9-Z593]. When such a change is made, the engineer will
issue a “written change order.” If the change is significant, the contract will be
adjusted by agreement, and if the parties do not reach an agreement, then the
engineer may unilaterally determine the amount of the adjustment, provided that it
is “fair and equitable.” A “significant change” applies to circumstances where either
“the character of the [w]ork as altered differs materially in kind or nature” from that
included in the original contract, or “an item of [w]ork, as defined elsewhere in the
[c]ontract, is increased in excess of 125 percent or decreased below 75 percent of
the original [c]ontract quantity.” Id.
If a change is made to the scope of the work and the parties cannot agree
on an equitable adjustment to the contract, the engineer will determine the
additional compensation in accordance with section 1-09.4 and the allowed time
2 The engineer is defined in section 1-01 of the standard specifications as the “[c]ontracting
[a]gency’s representative who administers the construction program for the [c]ontracting [a]gency.”
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extension pursuant to section 1-08.8. Id. Section 1-09.4 provides that equitable
adjustments for compensation are determined by either unit prices or “[o]ther
means to establish costs” subject to limitations. Id., § 1-09.4, at 1-89. Under
section 1-08.8, time extensions are limited to changes or events that “had a
specific impact on the critical path” and “could not have been avoided by
resequencing of the [w]ork or by using other reasonable alternatives.” Id., § 1-08.8,
at 1-78.
Here, over the duration of the project, the City issued 16 change orders.
The change orders increased the amount of time for Carey to complete the project
from 180 days to 242.5 days and provided for additional compensation that raised
the contract price from $4,282,653.42 to $4,702,656.86. Carey did not agree with
the majority of the adjustments and attempted to protest nine of the change orders.
C. Protested Change Orders
Section 1-04.5, titled “Procedure and Protest by the Contractor,” provides
the specific course of action for a contractor to protest change orders. Importantly,
section 1-04.5 states:
A change order that is not protested as provided in this [s]ection shall
be full payment and final settlement of all claims for [c]ontract time
and for all costs of any kind, including costs of delays, related to any
[w]ork either covered or affected by the change. By not protesting as
this [s]ection provides, the [c]ontractor also waives any additional
entitlement and accepts from the [e]ngineer any written or
oral order (including directions, instructions, interpretations, and
determinations).
In order to protest the engineer’s determination, the contractor must:
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1. Immediately give a signed written notice or protest to the [p]roject
[e]ngineer or the [p]roject [e]ngineer’s field [i]nspectors before
doing the [w]ork;
2. Supplement the written protest within 14 calendar days with a
written statement and supporting documents providing the
following:
a. The date and nature of the protested order, direction,
instruction, interpretation or determination;
b. A full discussion of the circumstances which caused the
protest, including names of persons involved, time,
duration and nature of the [w]ork involved, and a review of
the [p]lans and [c]ontract [p]rovisions referenced to
support the protest;
c. The estimated dollar cost, if any, of the protested [w]ork
and a detailed breakdown showing how that estimate was
determined;
d. An analysis of the progress schedule showing the
schedule change or disruption if the [c]ontractor is
asserting a schedule change or disruption; and
e. If the protest is continuing, the information required above
shall be supplemented upon request by the [p]roject
[e]ngineer until the protest is resolved.
Id., § 1-04.5 at 1-21 to 1-22.
Pursuant to section 1-04.5(1), Carey provided signed written notice of
protest to change orders 5, 7, 8, 10, 11, 12, 13, 14, and 15. Carey also provided
written supplements to those protests as required by section 1-04.5(2). However,
Carey’s written supplements did not include all of the substantive information and
analysis required by subsections (a)-(e). Some of its written supplements provided
an estimated dollar cost but no “detailed breakdown showing how that estimate
was determined” as required by 1-04.5(2)(c). Many of them did not provide the
mandatory “analysis of the progress schedule showing the schedule change or
disruption” called for in 1-04.5(2)(d), but rather broadly stated that “Carey is
currently analyzing the schedule impacts from this change and all previous
changes [and] due to the massive number of changes and their ongoing nature,
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cannot provide specific schedule impacts at this point.” Because Carey’s protests
and supplements did not comply with the substantive requirements of section 1-
04.5, the City determined they were invalid and submitted a written explanation to
Carey for each one.
D. Notice of Claims
Section 1-04.5 explains that if “the [c]ontractor does not accept the
[e]ngineer’s determination then the [c]ontractor shall pursue the dispute and claims
procedures set forth in [s]ection 1-09.11.” Further, if the contractor does not follow
the procedures of both sections 1-04.5 and 1-09.11, “the [c]ontractor completely
waives any claims for protested [w]ork.” Id., § 1-04.5, at 1-22. Under section 1-
09.11, when the protest under section 1-04.5 does not provide a satisfactory
resolution for the contractor, “then the [c]ontractor shall provide the [p]roject
[e]ngineer[3] with written notification that the [c]ontractor will continue to pursue the
dispute in accordance with the provisions of [s]ection 1-09.11.” This notice must
be provided within seven days after receipt of the engineer’s written determination
that the protest was invalid under section 1-04.5. Id., § 1-09.11, at 1-96. The
notice shall indicate whether the contractor seeks to resolve the dispute through a
“[d]isputes [r]eview [b]oard as outlined in [s]ection 1-09.11(1), or to submit a formal
claim directly to the [c]ontracting [a]gency pursuant to [s]ection 1-09.11(2).” Id. If
there is no request for consideration by a dispute review board or one is not
3 The project engineer is the “[e]ngineer’s representative who directly supervises the
engineering and administration of a construction project.” STANDARD SPECIFICATIONS, supra, at 1-5.
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established, the contractor “shall submit a formal claim directly to the [c]ontracting
[a]gency as outlined in [s]ection 1-09.11(2).” Id.
In accordance with section 1-09.11, Carey provided the City with timely
written notices of its intent to pursue claims related to each denied change order 4
and indicated that it sought to resolve the issues through the use of a dispute
review board. The City responded to each of Carey’s notices and stated that Carey
did not have any legal or contractual right to pursue such claims. Each response
from the City directed Carey to section 1-04.5 of the standard specifications and
stated that “Carey’s failure to comply with requirements of 1-04.5 has resulted in []
Carey’s complete waiver of any such claim for protested work.”
E. Formal Claim Requirements
Section 1-09.11(2) provides that all claims must be in writing and “in
sufficient detail to enable the [e]ngineer to ascertain the basis and amount of the
claim.” The contractor must submit all claims to the project engineer. Section
1-09.11(2) also provides a list of information that must accompany each claim,
including a detailed factual statement, specific provisions of the contract that
support the claim, and copies of any supporting documents. Claims for additional
time must include an analysis of the progress schedule to show the reason for
such an extension, and claims for additional compensation must provide “the exact
amount sought and a breakdown of that amount” into various subcategories. Id.,
§ 1-09.11(2), at 1-99. “Failure to submit with the [f]inal [c]ontract [v]oucher
4 With the exception of change order 15, as Carey did not file notice of its intent to file a
claim within the 7-day window required by section 1-09.11. Carey concedes in briefing that its notice
of claim for change order 15 was not timely.
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[c]ertification such information and details as described in this [s]ection for any
claim shall operate as a waiver of the claims by the [c]ontractor as provided in
[s]ection 1-09.9.” Id., § 1-09.11(2), at 1-100.
Although Carey provided written notice of intent to submit claims on nine
different change orders and ten other issues, the only formal claim that it submitted
before the final contract voucher certification was its claim on change order 5,
which was done on October 28, 2015. In its formal claim, Carey sought an
additional 25 days of work due to “changes to the Waterline, Joint Utility Trench,
Storm Sewer, Gas Line, and Excavation” and additional compensation in the
amount of $139,366.90. On January 27, 2016, the City responded to Carey’s claim
and denied the request for additional time and compensation. First, the City
reiterated that Carey had waived its right to the adjustments by failing to comply
with section 1-04.5. It also denied the request for additional time because Carey
failed to identify the specific days and dates for which the time was sought, as
required by section 1-09.11(2)(8)(a), and further did not provide analysis of its
progress schedule as required by section 1-09.11(2)(8)(d). The request for
additional compensation was denied because Carey simply estimated its costs
rather than using force account worksheet tracking supported by certified payroll
data, which the City had used when it issued the change order.
F. Final Contract Voucher Certification and Payment
Under the standard specifications, once all the work is completed and
inspected, section 1-09.9 provides that the amount paid to the contractor is based
on the engineer’s final estimate and “presentation of a [f]inal [c]ontract [v]oucher
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[c]ertification” to be signed by the contractor. This voucher “shall be deemed a
release of all claims of the [c]ontractor unless a claim is filed in accordance with
the requirements of [s]ection 1-09.11 and is expressly excepted from the
[c]ontractor’s certification on the [f]inal [c]ontract [v]oucher [c]ertification.” Id., § 1-
09.9, at 1-94 to 1-95. If the contractor “fails, refuses, or is unable to sign and return
the [f]inal [c]ontract [v]oucher [c]ertification or any other documentation required
for completion and final acceptance of the [c]ontract,” section 1-09.9 explains that
“the [c]ontracting [a]gency reserves the right to establish a [c]ompletion [d]ate . . .
and unilaterally accept the [c]ontract.” Before unilateral acceptance of the contract,
the engineer must provide a written request to the contractor to submit the
necessary documents. If the contractor does not comply voluntarily, a formal
notification of the impending establishment of a completion date and unilateral final
acceptance will be provided to the contractor and the City will provide 30 days for
the contractor to submit the documents. Pursuant to section 1-09.9, “[t]he date the
[s]ecretary[5] unilaterally signs the [f]inal [c]ontract [v]oucher [c]ertification shall
constitute the [c]ompletion [d]ate and the final acceptance date.”
On July 8, 2016, once the project work was completed, the City provided a
final progress estimate and final contract voucher to Carey for review and signature
pursuant to section 1-09.9. Carey did not respond and the City sent another letter
to Carey on August 8 informing it of the City’s intention to establish the completion
date and to issue a unilateral final contract voucher. In accordance with section 1-
5 The definitions and terms set out in the 2012 standard specifications incorporated into
the contract at issue here explain that “Secretary” refers to the “Secretary of Transportation;” “the
chief executive officer of the Department [of Transportation] or other authorized representative.”
STANDARD SPECIFICATIONS, supra, § 1-01, at 1-5.
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09.9, the City provided Carey with 30 days to comply and submit the necessary
documents. On August 18, Carey responded and expressly refused to sign the
final contract voucher. Carey requested renegotiation on unit prices of numerous
bid items, stated that it had outstanding claims on multiple change orders, and
disputed the quantities paid on various bid items. Roughly one month later,
September 14, Carey wrote another letter to the City and reiterated that it would
not sign the voucher for those reasons. On October 14, the City wrote to Carey
and explained that it was proceeding with unilateral closeout of the project
pursuant to section 1-09.9 as “Carey did not submit any additional or outstanding
claims” during the 30-day period that was provided. On October 21, the City issued
the final progress estimate, and on November 2, the final contract payment was
sent to Carey. Thereafter, on November 14, the Snoqualmie City Council adopted
a resolution that accepted the project as complete and authorized the issuance of
a unilateral final contract voucher certificate, which was executed that day. Thus,
under section 1-09.9, the completion and final acceptance date was November 14.
G. Omnibus Claim
Approximately six months later, on May 12, 2017, Carey sent the City an
“omnibus claim” that purported to comply with section 1-09.11(2). 6 Carey’s
omnibus claim sought $1,796,756 and an additional 163 days of work. The City
6 Carey filed its complaint against the City the same day. However, the very section of the
standard specifications Carey cites in support of its contention that the claim was timely expressly
directs that “any such claims or causes of actions shall be brought only in the Superior Court of
Thurston County.” (Emphasis added.) While not addressed by either party in briefing, it is
noteworthy that, in addition to the defect based on timeliness, Carey filed its cause of action against
the City in King County Superior Court, not in Thurston County.
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denied the claim for numerous reasons, asserting that it was untimely under
section 1-09.11(2), waived under section 1-09.9, and barred by Carey’s failure to
comply with notice and protest requirements of section 1-04.5.
On appeal, Carey insists that the omnibus claim was timely pursuant to
section 1-09.11(3), “Time Limitation and Jurisdiction.” That section provides as
follows:
For the convenience of the parties to the [c]ontract it is
mutually agreed by the parties that any claims or causes of action
which the [c]ontractor has against the State of Washington arising
from the [c]ontract shall be brought within 180 calendar days from
the date of final acceptance ([s]ection 1-05.12) of the [c]ontract by
the State of Washington; and it is further agreed that any such claims
or causes of action shall be brought only in the Superior Court of
Thurston County. The parties understand and agree that the
[c]ontractor’s failure to bring suit within the time period provided, shall
be a complete bar to any such claims or causes of action. It is further
mutually agreed by the parties that when any claims or causes of
action which the [c]ontractor asserts against the State of Washington
arising from the [c]ontract are filed with the State or initiated in court,
the [c]ontractor shall permit the State to have timely access to any
records deemed necessary by the State to assist in evaluating the
claims or action.
(Emphasis added.) According to Carey, because it submitted the omnibus claim
on May 12, 2017, 179 days after the final acceptance date of November 14, 2016,
it was timely.
Absent clear intent to the contrary, we “give words in a contract their
ordinary, usual, and popular meaning.” Hearst Commc’ns, Inc. v. Seattle Times
Co., 154 Wn.2d 493, 504, 115 P.3d 262 (2005). We also “view the contract as a
whole, interpreting particular language in the context of other contract provisions.”
City of Union Gap v. Printing Press Props., LLC, 2 Wn. App. 2d 201, 224-25, 409
P.3d 239 (2018). Here, a plain reading of section 1-09.11(3) shows that it concerns
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litigation claims, not administrative ones. This is clear from the requirement that
any such claims and causes of action “shall be brought only in the Superior Court
of Thurston County.” STANDARD SPECIFICATIONS, supra, § 1-09.11(3) (emphasis
added).
Interpreting section 1-09.11(3) as inapplicable to administrative claims is
also consistent with section 1-09.11(2), which provides that formal claims must be
submitted with the final contract voucher and the failure to do so “shall operate as
a waiver of the claims by the [c]ontractor as provided in [s]ection 1-09.9.” Here,
Carey’s omnibus claim is barred by the plain language of section 1-09.11(2).
Because section 1-09.11(2) required Carey to submit its omnibus claim “with the
[f]inal [c]ontract [v]oucher [c]ertification” and Carey did not submit it until 179 days
after the issuance of the unilaterally signed final contract voucher certification, the
claim was waived. (Emphasis added.) The importance of diligent compliance with
the notice, protest, and claim provisions during the contract and the submission of
claims prior to final completion or termination of the contract was also highlighted
by Division Two of this court in Realm:
All contracting agencies using the [s]tandard [s]pecifications would
be denied the benefit of advance notice and the opportunity to
resolve disputes before they devolve into litigation because
contractors could simply choose to litigate their disputes after
termination without providing notice of disputes during the work. This
is not the result the contract’s plain words command.
168 Wn. App. at 11 (emphasis added). Not only was Carey’s omnibus claim
untimely, it was submitted on the same day that Carey filed its lawsuit against the
City, which left no opportunity for resolution prior to litigation. While we have
endeavored to clearly illustrate the other procedural lapses throughout this
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contractual relationship that establish the trial court did not err when it dismissed
Carey’s claims as barred as a matter of law, the failure to timely file the omnibus
claim is independently fatal to Carey’s appeal.
H. Claim Based on Change Order 5
As noted, the only claim that Carey timely submitted was to change order
5. Carey maintains that this claim was compliant with the standard specifications,
but the record shows otherwise. First, the claim is barred under section 1-09.9,
which provides that the issuance of the signed final contract voucher certification
operated as “a release of all claims of the [c]ontractor unless a claim is filed in
accordance with the requirements of [s]ection 1-09.11 and is expressly excepted
from the [c]ontractor’s certification on the [f]inal [c]ontract [v]oucher [c]ertification.”
Because the claim was not expressly excepted from the final voucher, it was
released pursuant to section 1-09.9. While Carey insists that this release only
applies to vouchers that are signed by the contractor, we disagree. But even
assuming arguendo that Carey’s interpretation was reasonable, the claim was also
waived on the independent basis that Carey failed to comply with section 1-04.5.
Prior to the issuance of the unilaterally signed final contract voucher, Carey
waived its claim to change order 5 by failing to follow the notice and protest
provisions of section 1-04.5. Although Carey provided notice of its intent to protest
change order 5, Carey failed to provide the necessary information required in its
written supplement pursuant to section 1-04.5(2). Carey was obligated under the
plain terms of the standard specifications to provide a cost estimate of the
protested work “and a detailed breakdown showing how that estimate was
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determined.” STANDARD SPECIFICATIONS, supra, § 1-04.5(2)(c), at 1-21 to 1-22.
Carey simply wrote, “Estimated value is $100,000.” Additionally, Carey was
required to provide an “analysis of the progress schedule showing the schedule
change or disruption.” Id., § 1-04.5(2)(d), at 1-21 to 1-22. Carey offered no such
analysis; instead, it wrote that it was “currently analyzing the schedule impacts”
and “cannot provide schedule impacts at this point.” Section 1-04.5 is clear: “A
change order that is not protested as provided in this [s]ection shall be full payment
and final settlement of all claims for [c]ontract time and for all costs of any kind.”
Without reference to the record, Carey claims that “the City made it
impossible for Carey to comply with the contract’s substantive protest and claim
requirements due to the manner in which the City ‘sliced and diced’ Carey’s
[change order proposals] and repackaged its requested costs into unilateral
change orders.” “Appellate courts need not consider arguments that are
unsupported by pertinent authority, references to the record, or meaningful
analysis.” Cook v. Brateng, 158 Wn. App. 777, 794, 262 P.3d 1228 (2010).
Because Carey’s assertion on this point is wholly unsupported, we decline to
consider it.
In a brief of amici curiae filed by the Associated General Contractors of
Washington and National Utility Contractors Association of Washington in support
of Carey, amici propose a rule of substantial compliance that is based on
impossibility. Their proffered rule is as follows: “when a contractor substantially
complies with the contract’s requirements, in a good faith effort to strictly comply,
and under the circumstances strict compliance was not possible, its claim may
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No. 84602-7-I/22
potentially survive summary judgment.”7 While it is conceivable that
circumstances could arise where there is no waiver yet strict compliance is
rendered impossible, the record before us does not present any impossibility of
compliance and thus we have no reason to consider the merits of such a rule here.
Binding precedent from our Supreme Court holds that strict compliance with these
procedures is mandatory absent waiver. See Mike M. Johnson, 150 Wn.2d at 387-
88; American Safety, 162 Wn.2d at 762; NOVA, 191 Wn.2d at 867. Additionally,
this court has explained that when the contracting agency prevents the contractor
from strictly complying with the provisions, e.g., the City fails to provide the
contractor with the information required in order to do so, then strict compliance is
waived. Weber, 124 Wn. App. at 34-35. Carey does not argue that the City waived
strict compliance and has no support for its off-handed impossibility claim, which
makes sense in light of Carey’s insistence that “it did, in fact, strictly comply with
the [c]ontract’s notice, protest and claim, provisions.”
Carey then contends that the City was barred from enforcing the notice and
claim provisions because, according to Carey, “[t]he City breached the implied
warranty of design by issuing defective plans and specifications.” Carey relies on
Kenco Construction Inc. v. Porter Bros. Construction Inc., a distinguishable and
unpublished case. No. 74069-5-I, slip op. (Wash. Ct. App. June 11, 2018)
(unpublished) https://www.courts.wa.gov/opinions/pdf/740695.pdf. 8 In Kenco, the
7 In the amicus brief submitted in support of the City, the Washington State Association of
Municipal Attorneys (WSAMA) urges this court to reject the “substantial compliance” rule proposed
by Carey. WSAMA notes, correctly, that this court “is not in a position to overturn decades of legal
precedent to impose a ‘substantial compliance’ rule.”
8 As this case is unpublished, it is analyzed here only because it is relied upon in briefing.
See GR 14.1.
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No. 84602-7-I/23
parties entered into a subcontract, which the general contractor breached when it
withheld payments to the subcontractor for work that had already been completed
and for which payment was required under the terms of the subcontract. Slip op.
at 7. The general contractor argued that the subcontractor had waived its claims
as it had failed to strictly comply with the notice provisions under the contract. Id.
at 14. On review, this court explained that “[a] party is barred from enforcing a
contract that it has materially breached,” and thus, “[i]f the jury found that [the
general contractor] was first to materially breach the contract, [the general
contractor] would have no authority to enforce compliance to the contract’s strict
notice requirements.” Id at 14-15.
Unlike the general contractor in Kenco, which withheld payment that was
due under the terms of the subcontract, the City paid Carey for all of its work in
accordance with the contractual provisions. The standard specifications expressly
allow the City to alter the scope of Carey’s work without invalidating the contract.
STANDARD SPECIFICATIONS, supra, § 1-04.4, at 1-20. Consistent with the terms of
the contract, the City issued change orders and made equitable adjustments in
accordance with sections 1-08.8 and 1-09.4. Because the work under the project
changed, the City awarded Carey additional compensation and time. As Carey
points to no material breach of the contract, Kenco is inapposite and Carey’s “first
breach” argument is unavailing.
Viewing the evidence and drawing all reasonable inferences in favor of
Carey as the nonmoving party, Carey has failed to establish any genuine issue of
material fact as to whether it complied with the mandatory notice, protest, and
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No. 84602-7-I/24
claim provisions of the standard specifications. While Carey insists that a genuine
material issue exists, bare assertions are insufficient to defeat summary judgment.
Trimble, 140 Wn.2d at 93. Further, Carey’s interpretation of section 1-09.11(3) as
allowing administrative claims to be submitted up to 180 days after final completion
of the project is at odds with the plain language of the provision, which is
unambiguous. Thus, even though Carey disputes the effect of that provision,
summary judgment is not precluded. See Voorde Poorte, 66 Wn. App. at 362.
Because Carey does not demonstrate any genuine issue of material fact as to
whether it complied with the mandatory procedures in order to preserve its claims
under the contract, the trial court did not err in granting summary judgment in favor
of the City. 9
II. Award of Attorney Fees and Costs To the City by the Trial Court
Carey provides no argument on this issue beyond its assignment of error
which reads: “Because the trial court erred in dismissing Carey’s claims on
summary judgment, the trial court also erred in awarding attorneys’ fees and costs
to the City.” As explained, the trial court did not err in granting summary judgment.
The trial court awarded the City attorney fees and costs pursuant to RCW
9 Carey also assigns error to the trial court’s denial of its motion for reconsideration and its
refusal to consider additional evidence submitted in support of that motion. Because the trial court
did not err in granting summary judgment, it was not error to deny Carey’s motion for
reconsideration.
Further, the trial court did not err in refusing to consider Carey’s additional evidence. Under
CR 59(a)(4), a motion for reconsideration may be granted on “[n]ewly discovered evidence, material
for the party making the application, which the party could not with reasonable diligence have
discovered and produced at [summary judgment].” “If the evidence was available but not offered
until after that opportunity passes, the parties are not entitled to another opportunity to submit that
evidence.” Wagner Dev., Inc. v. Fid. & Deposit Co. of Md., 95 Wn. App. 896, 907, 977 P.2d 639(1999). As the trial court noted, Carey offered no explanation for the new evidence and did not
even contend that it was unavailable beforehand. Accordingly, the trial court did not err in refusing
to consider it.
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No. 84602-7-I/25
39.04.240, which entitles the City to such recovery when it prevails on an action
arising out of a public works contract. Because the City prevailed in such a dispute,
the trial court did not err in awarding attorney fees and costs to the City.
III. Attorney Fees and Costs To the City on Appeal
The City seeks attorney fees and costs on appeal pursuant to RCW
39.04.240 and RAP 18.1(b). RCW 39.04.240 allows for such an award, and the
City has both complied with RAP 18.1(b) by devoting a section of its brief to its
request and prevailed in this appeal. Accordingly, we award the City reasonable
attorney fees and costs incurred on appeal, subject to compliance with the
additional procedural requirements set out in RAP 18.1.
Affirmed.
WE CONCUR:
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