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VERMONT MARBLE CO. v. BALTIMORE CONTRS.

August 20, 1981

VERMONT MARBLE COMPANY, Plaintiff,
v.
BALTIMORE CONTRACTORS, INC., Defendant



The opinion of the court was delivered by: CORCORAN

This matter is before the Court on cross motions for summary judgment. Additionally the plaintiff, Vermont Marble Company, has moved for partial summary judgment on several underlying issues.

 The action arises out of the construction of an extension to the Everett McKinley Dirksen Senate Office Building on Capitol Hill. The defendant, Baltimore Contractors Inc. (BCI), was the prime contractor with the Architect of the Capitol (AOC or Architect) to perform "Phase IV" in the construction.

 The plaintiff, Vermont Marble Company (VMC) was a subcontractor to BCI. Its undertaking was to do the stonework facing on the building. Roughly 20 months after signing the subcontract, VMC abandoned the project asserting a right to rescind by reason of undue delays in the preparation of the site for the performance of its stonework.

 Shortly before formally rescinding, VMC filed this action seeking a declaration of its rights under the subcontract and asking monetary relief in the nature of quantum meruit for the work it had performed thereunder.

 A. Factual Background

 1. The Prime Contract Between the Architect and BCI

 In the summer of 1977 the Architect invited bids for "Phase IV" of the extension of the Dirksen Building. Phase IV involved the construction of the superstructure of the building. *fn1" BCI was awarded the contract and on October 28, 1977 was given "notice to proceed."

 Under its prime contract with the Architect, BCI agreed to certain "milestone" dates for completion of specified major steps of construction. The original milestones, measured from the October 28, 1977 notice to proceed, were as follows:

 
2. All concrete and fireproofing through first six floors: 440 days (January 10, 1979).
 
3. All concrete and ... through remaining floors and roof: 550 days (April 30, 1979).
 
4. Stone installation and masonry work through first six floors: 745 days (November 11, 1979).
 
5. Completion of all work: 900 days (April 14, 1980).

 2. The Subcontract Between BCI and VMC

 In August 1977, VMC sent a proposal to BCI for a subcontract to perform the stonework. BCI used the VMC bid in its bid for the prime contract. In December, 1977, BCI presented VMC with a counter proposal which consisted of BCI's standard form subcontract with 11 pages of attached "riders." Among the key elements of the Baltimore Contractors' proposal were the following:

 1. Article IV, stating in part, that "Subcontractor shall ... prosecute the work ... in prompt and diligent manner; and ... where necessary to expedite the performance thereof, the authorized representative of subcontractor shall take orders directly from the Superintendent of Contractor. Subcontractor shall do the several parts of the work at such times and in such order as Contractor may direct and shall proceed with and wholly finish the work in such time as not to delay Contractor or other subcontractors, and to insure completion of the Prime Contract within the time fixed therein; ... it being understood that time is of the essence of this Agreement."

 2. Article XIV, included a "no-damage-for-delay" clause, providing, inter alia : "Contractor shall have the right at any time to delay or suspend the commencement or execution of the whole or any part of the work without compensation or obligation to subcontractor other than to extend the time for ...


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