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Limited Waiver of Sovereign Immunity for Actions ex contractu Applied only to Written Agreements

In 2013, Fulton County (the “County”) and SOCO Contracting Company, Inc. (“SOCO”) executed a written contract for the construction of a cultural center. The contract was approved by the Fulton County Board of Commissioners (the “Board”). As a result of several delays, including those caused by change orders, inclement weather, and the shutdown of the federal government, the scope of the work and timeline for completion was altered. SOCO filed a complaint against the County alleging breach of contract and bad faith performance of the contract. Fulton Cty. v. SOCO Contracting Co., Inc., 343 Ga. App. 889 (2017), reconsideration granted (Nov. 15, 2017). The County filed a motion for summary judgment, asserting that SOCO’s claims were barred under the doctrine of sovereign immunity. The County also alleged that the contract for construction provided that “[t]he County, without invalidating the Contract, may order changes in the Work within the general scope of the Contract as defined herein.” The trial court denied the County’s motion, and the County appealed.

SOCO blamed the construction delays on adverse weather conditions, improper design for the cultural center, the County's unwillingness to make timely decisions on changes, and the impact that the federal government's shut down had on obtaining certain permits. As a result, the County submitted more than 30 change orders in its project evaluation log. However, the change orders were not separate agreements and SOCO admitted that the County never issued a change order extending the contract time, despite these delays.

The County argued that although the State has waived sovereign immunity for the breach of any written contract, it did not waive immunity for causes of action arising from modifications to the written contract that failed to follow the written change order policy outlined in the contract. In other words, the limited waiver of sovereign immunity for actions ex contractu applied only to written agreements, and may not be extended by oral directives or course of conduct. The Court agreed and refused to create an exception to the rules regarding the waiver of sovereign immunity based upon any reliance that SOCO may have placed on the County's request for changes or on the parties' course of conduct. Accordingly, the Court vacated the trial court’s denial of summary judgment and remanded the case for further consideration as to whether the parties strictly complied with the contract.

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