Major problem with project, Lawyer recomendation?

[RAM]

Reaching out to see if anyone had any lawyer recommendations for western Canada (BC), one that may have experience with MOTI?

I ran into big problems on an MOTI project. 600K job that was only supposed to be 6 weeks long has destroyed my 5M gross per year civil construction company and my lively hood. We are in a typical disagreement of who’s fault it is. of course they say it’s all my fault and I say it’s mostly all theirs. But I have some interesting facts to bring forward.

For one, I was sent the wrong drawings day 1 on the project right from the head MOTI office in Coquitlam. Min rep said to use the ones I have, which I did, and ended up having to redo a large portion of the work at my expense as a result when the engineer made a site visit and said it was wrong. But I was only given this set my MOTI. The drawing revisions didn’t even make sense as multiple drawings had the same revision number and date.

Next, MOTI was slow at administering the project which caused major delays. We missed our window to order precast concrete due to the engineer missing a manufacturer note which delayed this part of the project by a month. We put a request in for project timeline extension immediately after being awarded as the project didn’t get awarded and permits in place until just before we were originally scheduled to be at project completion. They waited over a month to decline the request when the specs only give them 7 days. They then proceeded to charge liquidated damages of $1000/day based on the original start date which was before the contract was awarded.

next, we got a brand new Ministry rep. This was his very first job as a ministry rep. Prior, he had 10 Years as a self proclaimed surveyor and before that, 15 years in hotel management. He continually rejected our submittals prior to project starting which contributes to delays. Our QC program in particular was wrongfully rejected many times after multiple revisions. The specs state it is up to us to create a program (which we have) and cite a basic guideline to creating the program, and then it is his responsibility to create a QA program based on our QC plan. It turned out he already wrote up his QA plan and was trying to get us to conform to it. Many errors made on his part throughout the whole project, difficult to work with, 42 NCR’s and a few stop work orders. Had two other min reps fill in while he was gone towards the end, both were seasoned and had a reputation for completing large highway projects in BC. Day and night difference, 0 NCR’s, our production went up over 1000%.

We asked for another timeline extension and was denied. This one was for the freak storms in bc in November of 2021 which effected our job. Logistics were messed up, we were isolated, equipment we ordered got delayed by over two weeks which effected critical path. They gave 1 days grace of no paying LD’s

Next was project turned out to be 33% larger than originally bid on quantities. We got paid for the unit price items but no timeline extension was granted once again and our lump sum items were not compensated for accordingly even though each item increased in cost dramatically.

We followed through with several disputes. everyone was denied. They take no fault. We requested a dually executed supplemental agreement to work out extra costs once the drawings we were given were found to be not the right ones. They gave no response.

I’m at a loss for what to do. It took a part of 3 seasons to complete this job but I did get it to total completion. 22 weeks according to my construction schedule. Over 1M missing out of my account because of this job. It won’t bankrupt me, but I’ve had to sell every piece of equipment I have except one excavator and a gravel truck which is where I’m starting from again.

Anyone have any advice on this one, maybe someone who’s been through something similar? Looking for a really good lawyer recommendation if anyones got one? This has been so damaging to my net worth, I don’t think I can just let it go and move on. If I sue and loose and go bankrupt, I’m not loosing much at this point. There’s a whole list of other issues that went on with the project but I’de be writing a novel at this point. Any advice would be greatly appreciated.

 

[mekanik]

The best advice I can give is do not post any details on a public forum.

 

[cfherrman]

And have all the details and proof

 

[CM1995]

That's a lot to unpack.

Since I have no knowledge of Canadian law what does the basic contract language look like without going into specifics?

Simple US contract law would forbid charging LD's before the contract was executed unless there were some sort of crazy provision.

Was this your first DOT project?

 

[Jimothy]

Honestly sounds like it went pretty well

 

[Vetech63]

I’m glad I just repair equipment

 

[Tones]

A job I worked on my boss had a similar experience. The client insisted it was a fixed price contract and my boss reckoned it was a cubic yard rate. We shifted twice the amount of material that was in the schedule. It was put into arbitration which is one step before a full court hearing. Sadly the arbiter died 3 days before the hearing and the boss elected to stop further proceedings and did his doe cold. It made him harder and wiser and he worked his way out of that hole, bigger and better.

 

[joe--h]

I’m glad I just repair equipment

So get back to it, watching you not push the buttons is boring.

Joe H

 

[CM1995]

A job I worked on my boss had a similar experience. The client insisted it was a fixed price contract and my boss reckoned it was a cubic yard rate. We shifted twice the amount of material that was in the schedule. It was put into arbitration which is one step before a full court hearing. Sadly the arbiter died 3 days before the hearing and the boss elected to stop further proceedings and did his doe cold. It made him harder and wiser and he worked his way out of that hole, bigger and better.

Contracts can separate the sheep from the wolves for sure - the sheep go to slaughter and the wolves have dinner. Curious as to how one party could think it's fixed priced and the other party think it's unit cost from the same contract?

I've been through arbitration once and it sucks. The outcome is typical compromise where neither party gets what they want however the arbiter didn't die 3 days before the outcome.

 

[RAM]

That's a lot to unpack.

Since I have no knowledge of Canadian law what does the basic contract language look like without going into specifics?

Simple US contract law would forbid charging LD's before the contract was executed unless there were some sort of crazy provision.

Was this your first DOT project?

This was our first as a prime contractor. the contract language here is very biased leaning towards the project owner.

The contract states basically that they can charge LD’s how they see fit from the moment we are past the original completion date, and that we can‘t sue for any losses basically other than what we think we should have been compensated on the project. Meaning we basically can’t sue for losses claiming that this effected our momentum and put us into the domino effect we are in.

But then I’ve been told by others that the wording in their contracts often goes against Canadian construction law and can be over ruled at times with much effort.

Another contractor that deals with these guys almost exclusively has said this is actually quite normal and it’s expected to be involved in lengthy law suits after the job is complete on almost every project.

The language is so biased, that there every way imaginable that we as the contractor can violate the contract and have it stripped from us, but theres almost nothing on their end. Even non payment doesn’t justify us to withdraw from the contract.

That's a lot to unpack.

Since I have no knowledge of Canadian law what does the basic contract language look like without going into specifics?

Simple US contract law would forbid charging LD's before the contract was executed unless there were some sort of crazy provision.

Was this your first DOT project?

 

[crane operator]

Another contractor that deals with these guys almost exclusively has said this is actually quite normal and it’s expected to be involved in lengthy law suits after the job is complete on almost every project.

The language is so biased, that there every way imaginable that we as the contractor can violate the contract and have it stripped from us, but theres almost nothing on their end. Even non payment doesn’t justify us to withdraw from the contract.

Sounds like you just got a expensive lesson. Going to be even more expensive if you go to court over it.

The gov't has their own lawyers that get paid every year no matter what. The judges are getting paid if you have a case or not, so the only person it costs money, is you, when you sue the gov't. They have all the time in the world.

I'm sorry this happened to you, but it also sounds like you were playing in a league one step over your head.

I've turned down work just because of onerous contract language. They usually call when I don't sign and don't want to do their work. Sometimes its just not worth it, when the customer has much deeper pockets than me, and wants me to assume all risk and no reward. The customer usually tries the "don't pay attention to the contract language, it doesn't mean anything" nonsense . I have crossed out all the contract language that I won't agree with, and sign it and return it. Surprisingly that sometimes works, and its even amusing when it doesn't.

My sympathies to you, I'm sorry I don't have any advice to give you.

 

[Welder Dave]

Wrong drawings/documents from the get go? The contract may be written trying to claim you have no recourse but that could just be a scare tactic. Just like signing waiver forms, someone can still try and sue even though they signed waivers. It's probably worth at least having a qualified lawyer review the contract and the irregularities. You should be able to contact the law society of BC and get the names of lawyers (it's 3 in Alberta) that specialize in contract law or gov't. contracts. You may be able to do some searching of law firms to see if it's something they specialize in and see some reviews or some cases they have handled. You could also call law firms and ask who are the best contract lawyers in your area. I'd say probably at bigger law firms possibly with offices in other provinces. There may be 2 or 3 who's names come up that are well known. They won't be cheap but from what you're saying I think it's worth a few thousand bucks to get a professional opinion from an experienced lawyer.
My former neighbor was involved in an ugly lawsuit on a gov't. contract. I won't go into all the details but part of the job involved more work than was allowed for in the contract and the judge awarded I think an additional $45,000 for the additional work. The case was outlined in it's entirety and the judges decision was posted on the courts website. It took me 3 month's to get paid working on that job. I don't feel comfortable listing it or going into more detail. Just pointing out that a contract for the provincial gov't. wasn't cut and dry. The contract was worth a little under $500K in the early 80's.
Good luck
Looking online Bennet Jones may be a good law firm to contact. They are in several provinces so may have more resources than small law firms.

 

[suladas]

You need a good lawyer, I would recommend one who just does it on their own assuming they've been a lawyer for a long time and have a ton of experience, you get an extremely experienced lawyer for a much lessor fee who is likely to be way more fair with the billing then a firm, i've had good luck dealing with one who has forgot more about the law then most lawyers know to begin with. Being in B.C won't be much different then Alberta, but to take something like that to trial that is reasonably complex you could be looking at 2-3 years and $40-60k in legal fees easily.

Being that it's the government it cuts both ways. On one hand if they think they are right they will spend $100k in legal fees fighting you over $1 and won't bat an eye. On the other hand because no one has any skin in the game besides maybe getting fired or losing a promotion, none of them really care that much what the outcome is. IMO any contract with the government if you're not adding at least a 25% surcharge to cover chargebacks it's foolish.

Getting the wrong drawings you will win that 100%. The delays, i'd assume you'd get the charges gone for whatever length of time it took delaying the contract/start date that was their fault.

As for the quantities, depends how the contract is worded. If you were to price per yard or whatever you are entitled to whatever it took. If you were given prints and get your own volumes and it was a fixed price contract you're SOL.

I'm going to assume there is a clause that address disputes in the contract, what does it say? Probably engaging in binding mediation? If you can go that way and just pay a mediator and get it over with way quicker, it's a way better option. You'll save a fortune in legal fees and get it resolved way quicker.

Sorry for the back luck. I thought I had it bad suing a company for around $100k who refused to pay but in hindsight I don't have it bad at all.

 

[Welder Dave]

A really experienced lawyer is going to charge the upper limit whether they are a one person office or a partner in a large firm. Large firms often have more resources and other lawyers they can consult with. We don't know all the details, actually we know very little so everything is just speculation at this point. That's why I suggested having an experienced lawyer review everything. $600K contract and forcing you to have sell most of your equipment to avoid bankruptcy is a big deal! Most large contracts the gov't. will have a good idea what it should cost. In the case of the job my neighbor was involved in above, they came back and asked if my neighbor (and the people he was working with for bonding) if they wanted to revise their bid because it was about $60,000 lower than the next bid. No, they said they could do it for the bid they gave.
I have to disagree with Suladas a bit concerning lawyers. Number 1 there are never guarantees in a lawsuit. A few people suggested he had a 100% chance of winning if he pursued a case concerning his dump truck due to work being done without a signed contract. His "experienced" lawyer advised it wasn't worth writing a letter to see what kind of defence the shop had so he took the truck back in pieces where it's now basically a pile of scrap. A few hundred bucks for a carefully worded letter could have had the shop looking for a way to avoid going to court. It would cost them money too and how do you defend taking things apart and putting thousands in parts into a job without a signed work order? Basically you can't. People can act like they did nothing wrong and you can go pound sand but getting a letter from a lawyer can change their attitude in a hurry. This case involving a gov't. contract is a little different than a small shop but if mistakes were made in the contract and wrong drawings were given, whoever made up the contract can certainly be held accountable. Unfortunately it will cost some money to have it professionally reviewed but I think under the circumstances it's money well spent. Maybe after review a mediator may be a good option. Too much money and someone's livelihood at stake to just let it go.

 

[RAM]

Sounds like you just got a expensive lesson. Going to be even more expensive if you go to court over it.

The gov't has their own lawyers that get paid every year no matter what. The judges are getting paid if you have a case or not, so the only person it costs money, is you, when you sue the gov't. They have all the time in the world.

I'm sorry this happened to you, but it also sounds like you were playing in a league one step over your head.

I've turned down work just because of onerous contract language. They usually call when I don't sign and don't want to do their work. Sometimes its just not worth it, when the customer has much deeper pockets than me, and wants me to assume all risk and no reward. The customer usually tries the "don't pay attention to the contract language, it doesn't mean anything" nonsense . I have crossed out all the contract language that I won't agree with, and sign it and return it. Surprisingly that sometimes works, and its even amusing when it doesn't.

My sympathies to you, I'm sorry I don't have any advice to give you.

Thank you for your sympathies.

This has been an expensive lesson, I don’t have much choice in the matter of going after them. i do feel I have a fairly strong case. From what I can tell, they broke contract several times and that may actually throw the whole agreement right out.

Talking to others who have been through this with the same client, I’ve been told I have a strong case. And the situation it has now put me in, I can’t afford to let it go.

Canadian construction law is harsh. It sucks to because many contracts are written this way. immediate disqualification for any public tenders for altering or adding to the contract docs. And if you don’t play with the rules they make, you don’t work in this industry unless you have private clients.

It wasn’t like I under bid it either. There were 5 bids all together, we were the lowest by 16,000. Two others were with-in 30K and the highest was a bit away but under 100K difference. It was all much bigger contractors, one was the pavers who are part of that conglomerate company that owns everything up here.

We’ll see how it goes I guess. Just need really good legal advice now.

 

[RAM]

Wrong drawings/documents from the get go? The contract may be written trying to claim you have no recourse but that could just be a scare tactic. Just like signing waiver forms, someone can still try and sue even though they signed waivers. It's probably worth at least having a qualified lawyer review the contract and the irregularities. You should be able to contact the law society of BC and get the names of lawyers (it's 3 in Alberta) that specialize in contract law or gov't. contracts. You may be able to do some searching of law firms to see if it's something they specialize in and see some reviews or some cases they have handled. You could also call law firms and ask who are the best contract lawyers in your area. I'd say probably at bigger law firms possibly with offices in other provinces. There may be 2 or 3 who's names come up that are well known. They won't be cheap but from what you're saying I think it's worth a few thousand bucks to get a professional opinion from an experienced lawyer.
My former neighbor was involved in an ugly lawsuit on a gov't. contract. I won't go into all the details but part of the job involved more work than was allowed for in the contract and the judge awarded I think an additional $45,000 for the additional work. The case was outlined in it's entirety and the judges decision was posted on the courts website. It took me 3 month's to get paid working on that job. I don't feel comfortable listing it or going into more detail. Just pointing out that a contract for the provincial gov't. wasn't cut and dry. The contract was worth a little under $500K in the early 80's.
Good luck
Looking online Bennet Jones may be a good law firm to contact. They are in several provinces so may have more resources than small law firms.

Thanks for the advice. i’m new with dealing with lawyers and the courts so this was helpful. looking into law society BC today was helpful.

Sounds like we have a similar thing going on as your neighbor as well. Unit price contract, we got paid for all the quantities, just none of the extras and all our lump sum items didn’t change. Usually if the amount of work increases, they will increase the lump sum items by that same percentage or pro-rate it according to how much extra time it took. We got nothing.

 

[RAM]

You need a good lawyer, I would recommend one who just does it on their own assuming they've been a lawyer for a long time and have a ton of experience, you get an extremely experienced lawyer for a much lessor fee who is likely to be way more fair with the billing then a firm, i've had good luck dealing with one who has forgot more about the law then most lawyers know to begin with. Being in B.C won't be much different then Alberta, but to take something like that to trial that is reasonably complex you could be looking at 2-3 years and $40-60k in legal fees easily.

Being that it's the government it cuts both ways. On one hand if they think they are right they will spend $100k in legal fees fighting you over $1 and won't bat an eye. On the other hand because no one has any skin in the game besides maybe getting fired or losing a promotion, none of them really care that much what the outcome is. IMO any contract with the government if you're not adding at least a 25% surcharge to cover chargebacks it's foolish.

Getting the wrong drawings you will win that 100%. The delays, i'd assume you'd get the charges gone for whatever length of time it took delaying the contract/start date that was their fault.

As for the quantities, depends how the contract is worded. If you were to price per yard or whatever you are entitled to whatever it took. If you were given prints and get your own volumes and it was a fixed price contract you're SOL.

I'm going to assume there is a clause that address disputes in the contract, what does it say? Probably engaging in binding mediation? If you can go that way and just pay a mediator and get it over with way quicker, it's a way better option. You'll save a fortune in legal fees and get it resolved way quicker.

Sorry for the back luck. I thought I had it bad suing a company for around $100k who refused to pay but in hindsight I don't have it bad at all.

Thanks for the advice.

I tried a small independent lawyer at the start, and without going into too much detail, he didn’t really help at all and worsened the situation. I have reason to believe he may have been threatened to leave our case alone.

I’m looking at some other firms now but this part of it is all new to me. Others who dealt with same client have told me to prepare for a possible 10 year case before I get anything out of it.

I did add good mark-up to the project when we bid it. Being a smaller company I don’t have near the overhead of some of the bigger guys. I’m aware of my costs and theres and often try to match just under their pricing and take the in between which is up in that 20-30% mark.

Quantities I have no issue with, I got paid for about 1/3 extra what we bid on. Just got no relief as far as timeline extension to allow for the extra, no force account work (there was a lot) and they never pro-rated the lump sum items to reflect the increase in work.

We‘ve been through the full dispute process on 3 disputes now. Each one they took no fault in the situation, basically sent me a letter stating so every time it was their turn to respond, and they forced me to sign an agreement waiving the first two disputes or they would have charged about an additional $50,000 in LD’s for a period of time in the spring when the min rep wanted us to start but I told him I wanted to start later because the ground water table was too high. And the third dispute they were late responding to one of the notices, I called them on it and they carried the dispute on. I was late responding to one of their notices and they threw the dispute out. So no chance of easy mediation there.

Very bad situation but I do feel I have some things going for me on this one. The waiver I signed to drop the first two disputes was another one. I was looking at it today and they broke contract on that one. I asked for a supplemental agreement for a change of work order as I am entitled to in the contract, I got an improper response back stating they would give me 1 day extension and to charge force account. I disagreed and asked for the change of work order. The following spring, the supplemental agreement to drop both disputes and a 1 day timeline extension is what they came up with and had me sign.

 

[Welder Dave]

In the case of the job my neighbor worked on there were hidden things that were found that required additional work. I'm not sure if it would have even came up if there wasn't a lawsuit in the 1st place. It really was an ugly mess. The job was bid too low but thought if they bid higher they'd lose the job to bigger more experienced contractors. Contractor and bonding partner had a big falling out and original contractor kicked off of the job. Ugly is an understatement.
You really do need a good lawyer who's not going to be intimidated by some gov't. lawyers. For what it's worth gov't. contracts can be terribly written and hard to fully understand. I think it's kind of like somebody is trying to impress everyone with fancy words and basically a bunch of mumbo jumbo to make themselves feel real important. Certainly doesn't mean it can't have mistakes or be wrong in some parts.

 

[RAM]

In the case of the job my neighbor worked on there were hidden things that were found that required additional work. I'm not sure if it would have even came up if there wasn't a lawsuit in the 1st place. It really was an ugly mess. The job was bid too low but thought if they bid higher they'd lose the job to bigger more experienced contractors. Contractor and bonding partner had a big falling out and original contractor kicked off of the job. Ugly is an understatement.
You really do need a good lawyer who's not going to be intimidated by some gov't. lawyers. For what it's worth gov't. contracts can be terribly written and hard to fully understand. I think it's kind of like somebody is trying to impress everyone with fancy words and basically a bunch of mumbo jumbo to make themselves feel real important. Certainly doesn't mean it can't have mistakes or be wrong in some parts.

Man that scenario your neighbor went through I wouldn’t wish upon my worst enemy. I think the more people involved in a project, the messier it can get. I’ve always liked to keep my projects as just myself involved with the risk end of things. Way less complicated if something does go wrong and you have 100% jurisdiction over the decision making process during that difficult period of time.

This is the one thing I’ve found is that no matter how ridiculous their terms do get in the contract, it all still has to abide by BC provincial construction law. Example is, you can write a clause into a contract stating if you don’t complete the project they can take your life. But it would mean absolutely nothing as BC provincial and federal laws would not allow it to happen.

I did a nasty job up in FSJ several years ago now. Things went bad there as well. Client kind of had my ass over a barrel with some ridiculous supplemental conditions. Same thing, basically they are held not responsible for what we bid on, not a lot of ways out. Endured that one for a full year, opened up a dispute at the end, I thought we were 100% going to court over it. I was able after much research to find a clause where they gave wrong information for the project relating to geo-tech reports, brought this up with them, walked away without going to court and they gave me double the original contract price. Had a really good relationship with them after that.

 

[suladas]

A really experienced lawyer is going to charge the upper limit whether they are a one person office or a partner in a large firm. Large firms often have more resources and other lawyers they can consult with. We don't know all the details, actually we know very little so everything is just speculation at this point. That's why I suggested having an experienced lawyer review everything. $600K contract and forcing you to have sell most of your equipment to avoid bankruptcy is a big deal! Most large contracts the gov't. will have a good idea what it should cost. In the case of the job my neighbor was involved in above, they came back and asked if my neighbor (and the people he was working with for bonding) if they wanted to revise their bid because it was about $60,000 lower than the next bid. No, they said they could do it for the bid they gave.
I have to disagree with Suladas a bit concerning lawyers. Number 1 there are never guarantees in a lawsuit. A few people suggested he had a 100% chance of winning if he pursued a case concerning his dump truck due to work being done without a signed contract. His "experienced" lawyer advised it wasn't worth writing a letter to see what kind of defence the shop had so he took the truck back in pieces where it's now basically a pile of scrap. A few hundred bucks for a carefully worded letter could have had the shop looking for a way to avoid going to court. It would cost them money too and how do you defend taking things apart and putting thousands in parts into a job without a signed work order? Basically you can't. People can act like they did nothing wrong and you can go pound sand but getting a letter from a lawyer can change their attitude in a hurry. This case involving a gov't. contract is a little different than a small shop but if mistakes were made in the contract and wrong drawings were given, whoever made up the contract can certainly be held accountable. Unfortunately it will cost some money to have it professionally reviewed but I think under the circumstances it's money well spent. Maybe after review a mediator may be a good option. Too much money and someone's livelihood at stake to just let it go.

To be candid, most people will just wipe their a$$ with a threatening letter from a lawyer, i've received plenty over the years and never once did it change anything for me. If people are stuck in their position a letter means nothing regardless of who wrote it. I just had my lawyer get rid of a $260k lawsuit I was getting sued over for deficient work, delays, etc etc all a bunch of BS, his bill ended up being about $10k and he spent a TON of time on it, a firm would have charged me at least double. He has been a lawyer for over 40 years and worked for massive firms and worked on cases for some of the biggest construction companies in canada like PCL, etc. He charges $400/hr, at a big firm that's getting you a lawyer with a few years experience, a lawyer that I know more about the law then. If you want a really good lawyer at a big firm you're paying $600-700+/hr and they will nickel and dime you like crazy.

Absolutely it's too much money to let it go and you need to make sure you do your homework and get a good lawyer, but it doesn't need to be a big name firm.