Revised July 14, 1999

                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                                     No. 97-60675


PYCA INDUSTRIES, INC., ET AL.,
                                                                                Plaintiffs,

PYCA INDUSTRIES, INC.,
                                                                       Plaintiff-Appellant,

                                         versus

HARRISON COUNTY WASTE WATER
MANAGEMENT DISTRICT; ET AL.,
                                                                              Defendants,

MAX FOOTE CONSTRUCTION COMPANY, INC.,
                                  Defendant-Cross Claimant-Appellee-Appellant,

                                         versus

OWEN AND WHITE, INC.,
                                       Defendant-Cross Defendant-Cross Claimant-Appellee,

                                         versus

HARRISON COUNTY WASTE WATER
MANAGEMENT DISTRICT,
                                            Defendant-Cross Defendant-Appellee-Appellant.


                     Appeals from the United States District Court
                       for the Southern District of Mississippi

                              May 27, 1999
Before GARWOOD, BARKSDALE and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:
        Before the court is a reprise of the travails of the constructi on of Harrison County,

Mississippi’s wastewater treatment facility. We have examined many issues in this case in an earlier

opinion, see PYCA Indus., Inc. v. Harrison County Waste Water Management Dist., 

(5th Cir. 1996) (“PYCA I”), and here are asked to resolve additional disputes between the county and

its contractors. Currently before us is the appeal from a grant of summary judgment in favor of

Harrison County Waste Water Management District (“District”) on the issue of the District’s role in

adjusting the cost of and the time for performance under a contract it had with Max Foote

Construction Company (“Foote”). Execution of the contract required Foote to subcontract wi th

numerous other companies, and one such subcontract, with PYCA Industries, Inc. (“PYCA”), led

to the instant dispute.

        The history of this case resides in multiple contract and tort claims among several different

parties arising out of the construction of the $9.27 million West Biloxi Wastewater Treatment Facility

(“Facility”). After several years of litigation and a previous appeal, the status of the case today is that

Foote and PYCA claim that the District violated its contract with Foote, and PYCA claims intentional

interference by Defendant-Appellee Owen & White, Inc. (“O&W”) with PYCA’s contractual

relationships. The district court granted sovereign immunity to O&W as an agent of the Dist ict,
                                                                                          r

which this court previously held had sovereign immunity as well, see PYCA I, 

, 1419-20

(5th Cir. 1996). The district court also found that the contract claims raised by PYCA and Foote had

not been properly preserved or were otherwise barred. PYCA and Foote (collectively, “Appellants”)

now argue that their rights were preserved in accordance with the contract documents and that

summary judgment was otherwise improvidently granted because material issues of fact exist about

the propriety of certain price adjustments under the contract. The parties also submit that they should


                                                    2
have been granted summary judgment on the issue whether the District violated its contract with

them. PYCA also disputes the extension of sovereign immunity to O&W and requests additional

equitable relief.

        We begin the opinion with an overview of the factual and procedural background to this case

and a statement regarding the standard of review that we will apply. In Part III, we address Foote’s

claims on appeal; Part IV concerns the District’s cross-claim against Foote. Part V of the opinion

reso lves PYCA’s claims against the District, while Part VI addresses the joint claim of Foote and

PYCA. Finally, in Part VII, we dispose of PYCA’s claim against O&W. For the reasons articulated

below, we affirm the judgment of the district court.

                                                    I

        The instant case involves the remaining claims between the parties in this litigation arising out

of the construction of the Facility.1

                                                   A

        The District hired Foote on September 27, 1989,2 pursuant to Contract No. 88-1, as the

general contractor for the project.3 The contract designated O&W as the project engineer and the


        1
          A fuller version of the underlying facts in this case is set out in PYCA 

.
It is worth reiterating that the District was created by the Mississippi state legislature for the purpose
of (1) abating the serious pollution of the Mississippi Sound, its tributaries, and other waters in
Harrison County through regulations dealing with the discharge of wastewater; and (2) owning,
operating, and maintaining all wastewater treatment plants in Harrison County. It was pursuant to
that second duty that the District undertook to renovate the Facility.
        2
            The contract was actually executed on October 16, 1989.
        3
         The contract included provisions that granted the District the right to direct changes in the
contract and provided that any such changes would result in an equitable adjustment to the amount
due Foote. In the event an agreement concerning the amount of such an adjustment could not be
reached by the parties, the contract provided, in a “Remedies” section, that Foote could pursue a

                                                    3
authorized representative of the District. PYCA, an electrical subcontractor, provided a bid to Foote

for the underground wiring and conduit work and the supply and installation of the electrical

equipment at the Facility, and that bid was incorporated by Foote into its own bid to the District.

Foote ultimately secured the general contract. Subsequently, Foote hired PYCA (pursuant to

Subcontract No. 80-16000) for $1.916 million on December 5, 1989 to perform the electrical work

on the project.4 PYCA was bound to Foote under the terms of its subcontract by all the terms and

conditions of the prime contract. After its bid was accepted, in February 1990, PYCA entered into

a purchase order contract with The Reynolds Company (“Reynolds”) for the purchase of all electrical

equipment for the project.5 While the project was ongoing (in July 1990), the District and O&W

negotiated with Foote and PYCA for certain changes in the electrical distribution system, changes

which PYCA and Foote had proposed before the commencement of the project.6 The prime contract

required that a change order be issued to effectuate such changes. Because the District had obtained

federal funding for the project, Foote’s contract and PYCA’s subcontract were subject to certain EPA




claim against the District.
        4
          PYCA had extensive experience both as an electrical prime contractor and subcontractor.
In the eleven years prior to its agreement to perform the electrical work on the Facility, PYCA had
performed 246 contracts on primarily public works projects.
        5
         This purchase order contract was in the amount of $450,000; all of the electrical equipment
at issue was manufactured by Siemens Energy & Automation, Inc. (“Siemens”).
        6
          Prior to executing its subcontract with Foote or entering into the agreement with Reynolds,
PYCA and Foote in October 1989 made a valued engineering proposal to O&W and the District in
which they proposed design changes in the electrical distribution system which would net the District
savings in excess of $300,000. This proposal, formally submitted on November 21, 1989, utilized
prices from lower-priced suppliers than Reynolds; the proposal was rejected at first but later accepted
(in April 1990).

                                                  4
regulations, which, among other things, provided an orderly process for changes in the work. O&W,

under the District’s direction, was responsible for reviewing and approving these change orders.

       The District ultimately directed O&W to implement the changes suggested by PYCA and

Foote. Although the parties reached an agreement on a credit for the underground electrical wiring

and conduit work, they could not agree on a credit for the revised equipment necessary for the

project. Nevertheless, the District made equitable adjustments to the amount due to Foote based on

its own calculations. The net effect of the adjustment was that the District paid less than originally

planned to Foote, which resulted in less money paid by Foote to PYCA. Foote (and PYCA through

Foote) objected to the change order because they disputed whether proper equitable adjustments

were made based on the changes to the electrical system. Because PYCA had, in the interim,

contracted with Reynolds, PYCA believed that the equitable adjustment should reflect the prices

being charged by Reynolds, not the proposed prices made before PYCA’s subcontract was executed.

Nevertheless, the District initially determined that the proper equitable adjustment was $161,180.

The District reached that figure by obtaining price quotes from additional electrical equipment

suppliers, a step which PYCA contends was a breach of the prime contract.

       The prime contract did require Foote and PYCA to apprise the District and O&W of the costs

associated with the purchase of the electrical equipment, and, in March 1991, the District sought that

data.7 At the same time, Reynolds refused to allow the District, seeking similar information, to audit

its records.8 O&W det ermined that the pricing by PYCA’s suppliers was not substantiated and


       7
        The prime contract provided that PYCA and Foote were limited in the amount of profit and
overhead markup that they could charge under the contract.
       8
         By contrast to Foote and PYCA, a supplier such as Reynolds was not limited by the prime
contract in the amount of profit it could make. Nevertheless, the District and O&W apparently did

                                                  5
decided that a further adjustment was required; the District and O&W sought to force PYCA to seek

other equipment options based on the price quotations they had obtained from other suppliers.

Consequently, and with the approval of the Mississippi Department of Environmental Quality, O&W

issued change order #7 on July 2, 1991, as an “agreed change order” establishing a change in the total

credit due to the District from $161,180 to $283,109. Foote refused to agree to the change order,

so, on August 7, 1991, the District issued it as a “unilateral change order” as allowed under the prime

contract. The change order reduced Foote’s payment by $283,109, and Foote in turn reduced its

payment to PYCA by an identical amount. PYCA objected on the ground that this increase in the

amount deducted forced it to breach its purchase price commitment with Reynolds. Foote objected

to the District’s unilateral determination in an attempt to preserve PYCA’s rights. Although PYCA

initially refused to complete its subcontract with Foote until the credit dispute was resolved, PYCA,

responding to the threat of contract termination exerted by the District, ultimately finished its portion

of the project.9

        There is no dispute that the changes to the electrical distribution system resulted in a cost

savings which the District was entitled to realize. The District contends that the maximum amount

of credit due it is $283,109, while PYCA argues that the reasonable credit is $122,000. Although

any adjustment in the amount of credit claimed by the District will pass through Foote directly to

PYCA, Foote asserted that the contract completion was delayed 59 calendar days by the District’s



not care for the markups made by Reynolds; the District’s and O&W’s actions in “correcting” what
they perceived to be unfair markups ultimately led to the instant dispute.
        9
          During the pendency of the dispute, PYCA, through Foote, notified the District and O&W
in writing of claims against them stemming from the performance of certain work and the supply of
certain materials that PYCA asserted was not required by the contract.

                                                   6
failure to resolve the dispute regarding the changes to the electrical distribution system and the pricing

of these same changes in a timely fashion.10

                                                     B

        On August 28, 1991, PYCA sued the District, O&W, Foote, and Fidelity & Deposit Company

of Maryland (“F&D”) as surety under the labor and materials bond.11 In count one, PYCA sought

a declaratory judgment on the issue whether the District, O&W, or Foote were authorized under the

prime contract to examine Reynolds’s price data, bid-shop the price of the electrical equipment, or

cause PYCA to breach its agreement with Reynolds by taking unilateral action. In count two, PYCA

alleged that actions by the District, O&W, and Foote breached the contract and violated 40 C.F.R.

§ 33.1030 by failing to provide PYCA an equitable adjustment pursuant to change order #7, resulting

in damages of $161,000. In count three, PYCA alleged that the District, O&W, and Foote breached

the contract by requiring PYCA to perform extra work on the influent pump station, installing

electrical meters, and installing a generator radiator without an equitable adjustment by way of a

change order. In count four, PYCA sought damages against the District, O&W, and Foote in

connection with the delay caused by change order #7. In count five, PYCA alleged that the actions

of the District and O&W constituted intentional interference in PYCA’s contractual relationship with

Foote and Reynolds, causing PYCA to breach its contract with Reynolds and default on its




        10
          On July 31, 1992, Foote submitted a claim for a 59-day extension in the contract time and
damages in the amount of $181,365. PYCA also asserted a claim through Foote in the amount of
$44,705 for delays caused by the District’s failure to resolve the issues associated with the changes
to the electrical distribution system.
        11
             On September 24, 1991, the District filed a motion to dismiss prior to answering the claims.

                                                     7
subcontract with Foote.12 This particular count seeks damages of at least $161,000. In count six,

PYCA alleged, inter alia, that Foote and its payment bond surety breached the subcontract by failing

to pay all retainage and other amounts due thereunder.13 In count seven, PYCA sought punitive

damages from all defendants. This court affirmed t he district court’s dismissal of the punitive

damages claim against the District, and PYCA settled its claims against Foote and F&D. Only the

punitive damage claims against O&W are in dispute on this appeal.

        Foote answered and filed a cross-claim against the District alleging that if it is liable to PYCA,

then the District is liable to Foote. Foote also asserted its own claim of $181,323 for delays and

disruptions associated with the District’s issuance of change order #7 and remission of liquidated

damages. The District filed a separate answer to Foote’s cross-claim, asserting two affirmative




        12
           This court previously determined that the District is a political subdivision of the state and
thus entitled to sovereign immunity. See PYCA 

. In order to avoid confusion
associated with “political subdivision,” a term of art used in our jurisprudence under the 11th
Amendment to the United States Constitution to preclude a finding of immunity, we observe here that
our finding of sovereign immunity for the District was based on a construction of the Mississippi
Sovereign Immunity Act of 1984, MISS. CODE ANN. § 11-46-1-23 (Supp. 1995). See 

We employed state law rather than 11th Amendment law because, in this diversity action, Mississippi
state substantive law applies to the tort claims in this suit. See 

n.4. Under Mississippi law
in place at the commencement of the instant controversy, the State and its political subdivisions were
entitled to sovereign immunity, while municipalities within the State were subject to a
governmental/proprietary function distinction. See 

We acknowledge that
characterizing the District as a “political subdivision” would prevent an extension of sovereign
immunity to it under the 11th Amendment.
        We rule infra, Section VII, on the question whether PYCA’s tort claims against O&W are
also precluded by sovereign immunity under Mississippi statute.
        13
           The disputes in count six were settled between PYCA, Foote, and F&D and are no longer
part of this case.

                                                    8
defenses: (1) the cross-claim “fails to state a cause of act ion;” and (2) the district court lacked

jurisdiction.14

        In the first of two Memorandum Opinions entered on January 18, 1994, the district court

granted a motion to dismiss counts one, t wo, three, and four, filed by the District and joined by

O&W. The court held, inter alia, that there was no privity of contract between PYCA and the

District or between PYCA and O&W. We subsequently dismissed count five (interference of

contract) against the District on grounds of sovereign immunity. See PYCA 

.

In May 1997, the district court issued an order similarly dismissing counts five and seven against

O&W, holding that O&W shared in the District’s sovereign immunity.15 PYCA later settled its


        14
          Although not of central relevance to this appeal, the following events occurred during the
course of this litigation which impact a complete understanding of this dispute: On March 17, 1993,
Foote sought to amend its pleadings to include claims against Universal Blower Pac, Inc.
(“Universal”). The magistrate judge denied the motion to amend. On January 12, 1994, the district
court ordered that Reynolds be joined as a party, and PYCA subsequently filed an amended
complaint, on January 27, 1994, joining Reynolds as an involuntary plaintiff. On February 11, 1994,
the District filed its answer, and, on February 23, 1994, Foote filed its answer to the amended
complaint and amended its cross-claim against the District asserting the contract balance due Foote
under the contract. The District had refused to pay Foote its contract balance, contending that certain
equipment furnished by Universal was defective. The District subsequently filed a motion to strike
a portion of Foote’s answer which it alleged pertained to Universal only. Foote claims that the
contested portion did not pertain to Universal but merely sought to clarify Foote’s cross-claims
against the District. Nonetheless, on May 5, 1994, the district court granted the District’s motion to
strike portions of Foote’s amended cross-claim alleging that the District breached its contract by not
making equitable adjustments with regard to Foote.
        On June 14, 1994, the District filed its motion to amend to include additional cross-claims
against O&W and Foote and counterclaims against PYCA. On June 28, 1994, the district court,
through the magistrate, denied the District’s request, stating that the “motion is untimely and will
delay final resolution of the trial.” The District objected on July 11, but the court overruled the
objection on October 3, 1994.
        15
           O&W observes that the district court entered an order on November 8, 1994, finding as a
matter of law that O&W was at all times the agent for the District and thus not liable for claims of
punitive damages. This particular claim was dismissed as to Foote and O&W for lack of appellate
jurisdiction in PYCA I because it had not been certified for interlocutory appeal. 

retainage claim against Foote and has dropped all claims against F&D. In the second January 18,

1994 Memorandum Opinion, the district court addressed, inter alia, PYCA’s claims against Foote.

The court granted partial summary judgment in favor of Foote, finding that Foote did not breach its

subcontract with PYCA by merely passing down to PYCA the deduction of $283,109, in accordance

with change order #7. The district court also requested additional briefing on the sovereign immunity

question before issuing an opinion thereto, but it did allow PYCA to file two amended complaints.

        On October 3, 1994, the district court ruled that the District was not entitled to sovereign

immunity and stayed the proceedings pending appeal. We reversed that determination in PYCA I.

        Following our May 3, 1996 opinion, which disposed of various issues previously certified by

the district court for interlocutory appeal, the case was reactivated. On March 3, 1997, the case was

set for a jury trial on April 7, 1997. The parties attended a pretrial conference on March 25, 1997.

After meeting with the parties in chambers, the district court determined that trial on the merits was

premature in light of various dispositive issues raised by the parties. On April 9, 1997, the district

court denied PYCA’s motion to strike the District’s jury demand. On April 28, 1997, the district

court directed the parties to file dispositive motions and supporting briefs on the remaining issues.

        This directive instructed the parties to submit briefs addressing whether PYCA’s claims

against the District properly “flowed through” Foote.16 The parties were further directed to address

the following issues: (1) whether Foote effectively preserved PYCA’s flow-through rights against the

District in accordance with the procedures set forth in the prime contract; (2) whether PYCA has

standing to challenge the District’s unilateral actions with regard to change order #7; (3) what rights,


1421-22. Since a final judgment has now been entered, we will address this issue infra, Section VII.
        16
             We explain the concept of “flow through” rights at length infra, Section V.

                                                  10
if any, PYCA has to challenge equitable adjustments made by the District; and (4) whether the

District is entitled to dismissal/summary judgment on Foote’s cross-claim.

        Foote and PYCA ultimately filed a joint motion for summary judgment. On August 29, 1997,

the district court denied this joint motion, addressing separately the legal and factual arguments raised

by the parties with regard to those issues. It found that neither PYCA nor Foote refuted the District’s

proof demonstrating that they are not entitled to an equitable adjustment or delay damages under the

prime contract in connection with change order #7 and other work directed by the District. The

district court therefore granted the District’s motion for summary judgment and denied Foote’s and

PYCA’s joint motion for summary judgment. The court also granted O&W’s motion to dismiss the

District’s cross claim. The court then entered final judgment in the case, and PYCA and Foote

separately appealed the district court’s decisions.17 PYCA also appealed the district court’s extension

of sovereign immunity to O&W. Finally, the District appealed the district court’s denial of its motion

to amend should we reverse on Foote’s amendment issue. We exercise jurisdiction over this case

pursuant to diversity of citizenship. 28 U.S.C. § 1332.

                                                   II

        We exercise de novo review of the grant of a summary judgment. See Boyd v. State Farm

Ins. Cos., 

, 328 (5th Cir. 1998). Summary judgment shall be entered in favor of the

moving party if the record, taken as a whole, “show[s] that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c); see also Celotex Corp. v. Catrett, 

, 322-23 (1986) (holding that the motion must



        17
        Foote also appealed the district court’s May 5, 1994 order striking portions of Foote’s
amended cross-claim. See supra note 15.

                                                  11
demonstrate that there is no genuine issue of material fact as to any element of the claim). A factual

dispute is “genuine” where a reasonable jury could return a verdict for the nonmoving party. See

Crowe v. Henry, 

, 296 (5th Cir. 1997); see also Anderson v. Liberty Lobby, Inc., 

, 248 (1986) (holding that a material fact is one that might affect the outcome of the case

under the governing law). If the record, taken as a whole, could not lead a rational trier of fact to

find for the nonmoving party, then there is no genuine issue for trial. See Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 

, 597 (1986). All doubts shall be resolved in favor of the

nonmoving party, and any reasonable inferences shall also be drawn in favor of that party. See

Huckabay v. Moore, 

, 238 (5th Cir. 1998).

                                                  III

       Following our opinion in PYCA I, Foote’s only unresolved claims are ones for delay damages,

a refund of liquidated damages assessed by the District, and an indemnity claim against the District

for claims PYCA asserts against Foote.18 We address the first two issues in this Part of our opinion

and resolve the final claim in conjunction with the District’s cross-claim at Part IV.

                                                  A

       The argument with Appellants’ contention that they are entitled to a 59-day extension of time

and additional compensation for delays and disruptions caused by the District. The District contends

that Foote’s delay claim is controlled by Paragraph CA.13 (“CA.13”) of the prime contract, which

it suggests operates as a “no damage for delay” clause. CA.13 provides, in pertinent part:




       18
          We note that, while both Foote and PYCA raise these issues in some form in their briefs
before this court, the claims are primarily Foote’s and will be treated as such in this opinion.

                                                 12
       No extension of time will be given for ordinary or foreseeable delays, inclement
       weather, or accidents, and the occurrence of such will not relieve the Contractor from
       the necessity of . . . completing the Work within the stipulated time limit.

       If delays are caused by acts of God, acts of Government, unavoidable strikes, extra
       work, or other causes or contingencies clearly beyond the control or responsibility of
       the Contractor, the Contractor may be entitled to additional time to perform and
       complete the Work, provided that the Contractor shall, within (10) ten days from the
       beginning of such delay notify the Owner in writing, with a copy to the Engineer, of
       the cause and particulars of the delay. Upon receipt of such notification, the Owner
       shall review and evaluate the cause and extent of the delay. If, under the terms of the
       AGREEMENT, the delay is properly excusable, the Owner will, in writing,
       appropriately extend the time for completion of the work . . . The Contractor agrees
       that he shall not have or assert any claim for nor shall he be entitled to any
       additional compensation or damages on account of such delays.

(emphasis added). The District contends that CA.13 is similar to “no damages for delay” clauses

commonly used in government contracts, both on the state and federal level. See United States ex

rel. St raus Sys., Inc. v. Associated Indem. Co., 

(5th Cir. 1992); cf. Wood v. United

States, 

(1922) (holding that no-damages-for-delay clause barred contractors fro m

recovering damages for delays caused by government); Edward E. Morgan Co. v. State Highway

Comm’n, 

(Miss. 1951) (affirming entry of judgment in favor of Mississippi State

Highway Commission in light of construction specifications providing in part that a contractor waives

all claims for interference, delay or damages).

       Although the general rule in our cases provides that a no-damages-for-delay clause is

enforceable at law,19 the rule is subject to the following exceptions: (1) where the delay was not

contemplated by the parties to the contract; (2) where delay is caused by bad faith or active

interference; and (3) if the delay is tantamount to an abandonment of the contract. See E.C. Ernst,


       19
          Although we of course apply Mississippi law to the instant dispute insofar as the tort claims
are concerned, we look for guidance to earlier cases from this court for general rules concerning the
construction of “no-damages-for-delay” clauses.

                                                  13
Inc. v. Manhattan Constr. Co. of Texas, 

, 1029 (5th Cir. 1977). We previously

addressed PYCA’s claim that the District engaged in intentional interference of contract and held that

that action could not proceed. See PYCA 

. We also find that, in light of

various contractual agreements and EPA regulations providing for equitable adjustments based on

objective pricing criteria, the delay caused by the pricing dispute was manifestly foreseeable.

Furthermore, neither PYCA nor Foote presents a compelling argument that the District’s actions with

respect to PYCA’s equipment were taken in bad faith, and no one argues that they constituted an

abandonment of the contract. Accordingly, under the Ernst test, we find that no exceptions to the

general rule upholding no-damages-for-delay clauses apply.

       Alternatively, Foote contends that CA.13 is not a “no damage for delay” clause and does not

exclude delays caused by the District or O&W, but we again disagree.20 CA.13 plainly includes

delays caused by “extra work, or other causes or contingencies clearly beyond the control or

responsibility of the Contractor.” Paragraph CA.25 further provides that “[t]he Contractor shall

perform any extra work (work in connection with the Contract but not provided for herein) when and

as ordered in writing by the Engineer . . .” (emphasis added). Contrary to Foote’s argument, then,

CA.13 do es not exclude delays caused by the District or O&W. To obtain an extension of time,

Foote was thus required to comply with CA.13 as written by notifying the District in writing “within

(10) ten days from the beginning of such delay.”21


       20
          Even though we have held that “no damage for delay” clauses are exculpatory and can lead
to unduly harsh results and must be strictly construed, see 

, we find here that
the plain and unambiguous language of CA.13 supports the district court’s conclusion that Foote is
barred from any monetary recovery from the District.
       21
          As an aside, we find unavailing Foote’s argument that CA.13 does not adequately identify
the party to which the exclusion of liability is applicable. Foote contends that, because the contract

                                                 14
       Foote advances several alternative arguments in support of its contention that CA.13 should

not control this case.



                                                  1

       Foote first opines that the District’s reliance on the no-damage-for-delay clause as a defense

is barred because the District failed to raise this affirmative defense in its answer to Foote’s cross-

claim. Foote relies on Federal Rule of Civil Procedure 8(c), which requires that parties specifically

plead “any . . . matter constituting an avoidance or affirmative defense.” FED. R. CIV. P. 8(c). Foote

also cites Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 

(Tex. Ct. App.

1994), in which a Texas court barred a contractor’s attempt to invoke a no-damages-for-delay clause

where the party did not affirmatively plead the defense as required by Texas rules of procedure. 

. The District in opposition cites Associates Commercial Corp. v. Parker Used

Trucks, Inc., 

(Miss. 1992), where the Mississippi Supreme Court held that an assignor

of a retail sales contract effectively preserved its defense that the assignee’s demand for repurchase

of the contract was untimely by making a general denial to the assignee’s allegations. 

. The District also relies on United States ex rel. H&S Indus., Inc. v. F.D. Rich Co., Inc., 525


does not specifically excuse delays caused by the Owner (the District) or the Engineer (O&W), the
district court’s interpretation of the clause as providing no damages for delay is incorrect. Foote
directs us to several Mississippi Supreme Court cases which it posits support its position. See
Heritage Cablevision v. New Albany Elec. Power Sys., 

, 1313 (Miss. 1994); Cherry
v. Anthony, Gibbs, Sage, 

, 419 (Miss. 1987); Johnson v. Board of Trustees of
Mississippi Annual Conference, 

, 276 (Miss. 1986). None of these cases involves a
no damage for delay clause, however; they each merely recite hornbook law that a court looks to the
language of the contract when interpreting a document’s meaning, and not to the debatable intent of
the parties. We do not disagree with that formulation of Mississippi contract law, but we believe it
beyond peradventure that, in the instant case, the prime contract clearly contemplates that CA.13, in
conjunction with other recitals in the contract, functions as a no-damage-for-delay clause.

                                                 

(7th Cir. 1975), in which the Seventh Circuit held that the availability of a no-damages-for-

delay defense was not waived for failure of the contractor to affirmatively plead the defense, but was

a matter to be resolved by interpreting the provisions of the contract as a whole. 

.

          Although Tacon reaches a different conclusion based on Texas procedural rules, we are not

bound by that decision; we do not even find the ruling persuasive given the facts of this case. Instead,

we hold that the view set forth by Associates Commercial and H&S Industries is the better one:

where a defense is bound up in the respective rights of the parties in light of the contract as a whole,

a party lodging a general denial of contractual liability need not identify a specific contractual

provision in its answer or responsive pleading to avoid waiver.22 This result is particularly compelled

by the fact that Foote seeks relief through a construction of the contract as a whole. The District

cannot fairly be prevented from invoking a part of the contract to defend against Foote’s claims. The

District thus has not waived its right to rely on CA.13 as a basis to defend against Foote’s cross-

claims.

          In addition, we held last year t hat, while “a defendant is supposed to raise an affirmative

defense as a basis for summary judgment when the motion for summary judgment is in the initial

pleading tendered by the defendant[,] . . . where the matter is raised by the trial court that does not

result in unfair surprise, technical failure to comply precisely with Rule 8(c) is not fatal, and in such

a situation a court may hold that the defense was not waived.” McConathy v. Dr. Pepper, 

           The District further contends that issues involving ambiguous contracts need not be
specifically pled, citing Century 21 Deep South Properties, Ltd. v. Keys, 

, 717 (Miss.
1995). As noted by Foote, the instant dispute does not involve an issue of contractual ambiguity.
The case’s holding, however, correctly states the proposition urged by the District, that is, that a
defense that a claim is unenforceable under the terms of a contract need not be affirmatively pled.

                                                  16
558, 562 (5th Cir. 1998) (citations and internal quotations omitted). We find that the district court’s

acceptance of the District’s motion was not error.

                                                    2

        PYCA and Foote further contend that, since other portions of the prime contract provide a

procedure for asserting an additional claim against the District for monetary damages, CA.13 is not

a no-damages-for-delay clause. We find that this position is not supported by the contract

documents. The plain language of CA.13 expressly and unambiguously limits the remedy for delay

to an extension of time and bars the contractor from any additional compensation.

        We find astonishing that PYCA and Foote actually bother to argue this point. Because of the

nature of the risks associated with complex construction, such clauses are common in the

construction industry, and PYCA and Foote, as experienced public contractors, surely are aware of

this fact. In Strauss Systems, we considered the viability of a similar clause which allowed for an

extension of time for completion should the Owner cause a delay. 

. In another

clause of the same contract, the subcontractor expressly accepted the predetermined compensation

for its services as sufficient “for all loss or damage arising out of the nature of the work . . . or from

any unforeseen or unknown difficulties . . . or obstructions which may arise . . . and for all risks of

every description connected with the work.” 

applying Texas law, held that the

subcontractor was limited solely to an extension of time as compensation for the delay. See 

86. We reasoned

        Contract provisions indicating that the delay was within the contemplation of the
        Parties have been found to be sufficient to preclude recovery of damages for delay in
        a construction contract. Parties to a contract might foresee or consider the possibility
        of delay and contractually provide for a remedy to be applied upon such occurrence.
        It is not necessary that exclusion of delay damages be express. A provision in the
        contract for an extension of time in case of delay caused by the contractor has been

                                                   17
        held to afford the subcontractor an exclusive remedy, precluding the recovery of
        damages from the contractor.

internal quotation omitted). We similarly find today that the provision at issue in this

contract, read together in light of the contract as a whole, demonstrates that Foote’s and PYCA’s

remedy for delay was effectively limited by CA.13 to preclude any additional compensation or

damages.23

                                                    3

        Next, PYCA and Foote argue that, assuming that CA.13 operated as a no-damages-for-delay

clause, the clause is void as against Mississippi public policy. They find support for this conclusion

in Section 31-5-41 of the Mississippi Code, which provides that

        “Hold harmless” clauses in construction contracts are void; exceptions.

        With respect to all public or private contracts or agreements, for the construction,
        alteration, repair or maintenance of buildings, structures, highway bridges, viaducts,
        water, sewer or gas distribution systems, or other work dealing with construction, or
        for any moving, demolition or excavation connected therewith, every covenant,
        promise and/or agreement contained therein to indemnify or hold harmless another
        person from that person’s own negligence is void as against public policy and wholly
        unenforceable. This section does not apply to construction bonds or insurance
        contracts or agreements.

MISS. CODE ANN. § 31-5-41 (Supp. 1996).

        The District contends that this section does not apply to CA.13 because CA.13 is not a hold-

harmless clause. The District suggests that CA.13 is “nothing more than an agreement between the



        23
          Foote draws our attention to Mississippi Transportation Comm’n v. SCI, Inc., 

(Miss. 1998), a case in which a jury awarded monetary damages for breach of contract to a
highway contractor notwithstanding the presence of a “no-damages-for-delay” clause. The case is
inapposite because the contractor’s claim was for breach, not delay. 

. The
court found that the Commission’s actions in breaching the contract were wholly independent of the
actions that the “no-damages-for-delay” clause was designed to protect. See 

                                                   18
parties as to the rights of the parties based on delays” and is thus consistent with another principle

of public policy set forth in Edward E. Morgan. In Edward E. Morgan, a contractor sued the

Mississippi Highway Commission for damages stemming from the commission’s alleged failure to

arrange for prompt removal of electric poles along the route of construction. The contract at issue

expressly incorporated standard specifications for road and bridge construction, adopted by the

Mississippi State Highway Department and approved by the Commissioner of the United States

Public Roads Administration. See Edward E. 

. The government

specification barred claims for delay and, similar to the clause in Strauss Systems, contained the

following provision:

        Scope of Payment. The compensation, as herein provided, constitutes full payment
        for the complete work, including all material, labor, tools, and equipment necessary
        for performing all work contemplated and embraced under the contract; for all loss
        or damages arising out of the nature of the work; for all loss from the action of the
        elements, except as otherwise provided; for any unforeseen difficulties or obstructions
        which may arise or be encountered during the prosecution of the work until its final
        acceptance by the Engineer; for all risks of every description connected with the
        prosecution of the work; also, for all expenses incurred by or in consequence of
        suspension or discontinuance of the work as herein specified.

Supreme Court found that the specifications were binding and held that the

contractor’s delay claims were barred. See 

above reasons, we hold that CA.13, which operates to limit a contractor’s (or

subcontractor’s) rights based on delay, is valid as drafted and is not void as against Mississippi public

policy. Even though Morgan was decided many years before the passage of § 31-5-41, it is clear that

CA.13 is not a hold-harmless clause, but rather details an agreement between sophisticated parties




                                                  19
for remedying delay caused by an Owner. CA.13 merely allows contractors to limit their losses from

delay by seeking an extension of time.24

                                                    4

       Fourth, Foote and PYCA contend that, assuming that CA.13 operated as a no-damages-for-

delay clause, EPA regulations promulgated at 40 C.F.R. §§ 33.1005 through 33.1145 (1992)

nevertheless establish Foote’s right to compensation as well as an extension of time for delays.25

Foote and PYCA further argue that these regulations supersede any conflicting provision in the prime

contract. Specifically, Foote and PYCA rely in part on § 33.1030, the model subagreement clause.

The provision reads as follows in pertinent part:

       Changes. If any change under this clause causes an increase or decrease in the
       contractor’s cost or the time required to perform any part of the work under this
       contract, whether or not changed by any order, the recipient shall make an equitable
       adjustment and modify the subagreement in writing . . .

40 C.F.R. § 33.1030, ¶ 3(a)(4).26 In addition to the “Changes” clause, Foote and PYCA further rely

on the following regulation:

       Suspension of Work. If the performance of all or any part of the work is suspended,
       delayed or interrupted for an unreasonable period of time by an act of the recipient in
       administration of this subagreement, or by the recipient’s failure to act within the time
       specified in this subagreement (or if no time is specified, within a reasonable time), the
       recipient shall make an adjustment for any increase in the cost of performance of this



       24
         In any event, the record in this case reflects that the delay here did not stem from negligent
conduct by O&W or the District, so § 31-5-41 would be inapposite even if CA.13 were a hold-
harmless clause.
       25
          The contract was subject to certain EPA Special Conditions because it involved the receipt
of a federal grant.
       26
          “Recipient” is defined as “[a]ny entity which has been awarded and accepted an EPA
assistance agreement.” 40 C.F.R. § 33.200. The recipient in this case is the District.

                                                  20
       subagreement (excluding profit) necessarily caused by such unreasonable suspension,
       delay or interruption and modify the contract in writing.

40 C.F.R. § 33.1030, ¶ 5(b).

       Foote urges that these special conditions are “virtually identical” to those incorporated into

construction contracts with the federal government and directs us to a series of inapposite federal and

state cases that purportedly favor its position. See, e.g., Southwestern Engineering Co. v. Cajun

Elec. Power Coop., 

, 976 n.1 (5th Cir. 1990) (interpreting a contract in determining

entitlement to overhead costs incurred after a contract was canceled prior to conclusion, and not

addressing EPA regulations or conflicting provisions); Aetna Cas. & Sur. Co. v. Doleac Elec., Inc.,

(Miss. 1985) (addressing damages recoverable as a consequence of contractual

breach, not EPA regulations or conflicting provisions). Although Foote makes a grandiloquent effort,

it ultimately ignores the decisive regulation: CA.13 is not superseded by EPA regulation because §

1005(b) permits the District to add additional contractual requirements. The EPA Special conditions

are minimum requirements, and the District is at liberty to add more st ringent conditions if it so

chooses. As permitted by EPA regulations, the disputed clauses in the prime contract, relating to

changes in the work and extra work, were requirements in addition to existing regulations. These

requirements were not superseded, and, thus, the Special Conditions and CA.13 are not in conflict.

       We must observe that PYCA’s and Foote’s attempt to cover all the bases in this case is not

a timorous one. Unfortunately, they attempt to cherry-pick their way through the EPA regulations,

selecting certain provisions that support their position while manifestly ignoring others that damage




                                                 21
their case. In the end, Appellants merely place their Foote in their mouth; excising one regulation

from the context provided by its companions is patently disingenuous.27

       For the reasons set forth above, we agree with the district court that CA.13 should be

enforced according to the agreement of the parties. Accordingly, we find that changes made within

the scope of the contract preclude damages for delay other than for a timely request for an extension




       27
           For instance, the EPA Special Conditions, in another subsection also incorporated into the
prime contract, prohibit a contractor from making a claim for delay damages. See 40 C.F.R. §
33.1030, ¶ 3(a). The Supreme Court held as much in United States v. Rice, 

(1942),
a construction case on appeal from the Court of Claims. The Court there addressed changes clauses
similar to those used in this case. See 

, the contract specifications and building site were
changed because of unsuitable soil conditions, thereby rendering the contractor unable to begin work
until five months later than the anticipated date. Upon the completion of the work, the contractor
was paid only the contract price. The plaintiff, a receiver for the contractor, sued the federal
government for delay damages, including overhead expenses accumulated during the delay. See 

. The Supreme Court essentially held that the “increase or decrease of cost”
language in the clauses was not broad enough to include consequential damages for delay. See 

         Subsequent decisions have followed the analysis in Rice when construing changes clauses.
See, e.g., Massman Constr. Co. v. Tennessee Valley Auth., 

, 1125 (6th Cir. 1985)
(denying under Rice equitable adjustment for profit based on delay). The Ninth Circuit read Rice as
follows:
         The provisions of the prime contract here involved relating to changes are standard
         clauses in government construction contracts. They have been considered in many
         decisions which have consistently held that under them the Government has the right
         to make changes within the general scope of the contract or necessitated by changed
         conditions and incur no liability for delays resulting from such changes except for an
         equitable extension of the time for performance.
McDanial v. Ashton-Mardian Co., 

, 514-15 (9th Cir. 1966).
         Foote does not include in its basket of cherries this settled law on the prohibition of delay
damages in federal contracts. Foote would instead have us conclude that the “Rice Doctrine” is “an
antiquated legal theory which has been used to preclude recovery of costs associated with delays as
a consequence of Government directed changes” and is, therefore, “dead.” In support of this theory,
Foote cites a single opinion from the Board of Contract Appeals and the opinion of an author in a
1991 law review article. While we need not reach this question, since we conclude that the EPA
Special Conditions were not in conflict with the prime contract, we note Foote’s hubris in pursuing
this alternative argument.

                                                 22
of time. Foote’s failure to submit a timely claim for an extension of time on PYCA’s behalf operated

to bar the relief sought for delay.

                                                  B

        Foote seeks to recover or reduce the $57,600 in liquidated damages assessed by the District

under the contract. The liquidated damages provision, Paragraph CA.14 (“CA.14”), reads as follows:

        In case the contractor fails to complete the Work satisfactorily on or before the date
        of completion fixed herein as or as duly extended as hereinbefore provided, the
        Contractor agrees that the Owner shall deduct from the payments due the Contractor
        each month the sum set forth in Table A at the end of this section for each calendar
        day of delay, which sum is agreed upon not as a penalty, but as fixed and liquidated
        damages for each day of such delay. If the payments due the Contractor are less than
        the amount of such liquidated damages, said damages shall be deducted from any
        other moneys due or to become due the Contractor, and, in case such damages shall
        exceed the amount of all moneys due or to become due the Contractor, the
        Contractor or his Surety shall pay the balance to the Owner.

Table A referenced in the section provided for liquidated damages of $1,200 “for each calendar day

of delay in completion time.” Foote contends that CA.14 is punitive in nature and thus unenforceable

as a matter of law. Fo ote and PYCA further contend in their joint itemization that the District

suffered no actual damages chargeable against them or, in the alternative, that the amount of damages

assessed under Paragraph CA.12 was clearly excessive and operated as a penalty.

        Of course, the starting point in the analysis is the plain terms of CA.14, which state that the

$1,200 amount “is agreed upon not as a penalty, but as fixed and liquidated damages for each day of

such delay.” Such clauses are construed by Mississippi courts with caution. With regard to

liquidated damages clauses, the Mississippi Supreme Court provides the following general guideline:

“Whether a sum stipulated is a penalty [a disfavored approach] or liquidated damages [an acceptable

approach] is a question of construction to be decided upon the terms and inherent circumstances of

each particular contract, judged at the time of the making of the contract, not as at the time of the

                                                 23
breach.” Hertz Comm. Leasing Div. v. Morrison, 

, 836 n.3 (Miss. 1990) (citation

omitted).   It follows that, if the sum certain of liquidated damages is not extravagant or

unconscionable under objective standards existing at the time of the agreement, the District need not

ultimately suffer actual damages for CA.14 to be an enforceable provision.

       “Ordinarily, the intention of the parties will control as to whether a provision in a contract is

for a penalty or for liquidated damages.” Continental Turpentine & Rosin Co. v. Gulf Naval Stores

Co., 

, 209 (Miss. 1962) (citation omitted). Such clauses are deemed unenforceable

penalties generally only in limited cases where (1) “the actual damage resulting from the breach may

be readily ascertained,” or (2) “the contract discloses no intention to fix the sum as liquidated

damages or leaves the intention in this regard in doubt.” 

In such cases, the

contested clause is “not a genuine . . . pre-estimate of liquidated damages, but was in fact a measure

to police and terrorize the [adversely affected party].” 

internal quotation omitted).

       The inherent difficulty of affixing actual damages flowing from a potential breach is a factor

favoring the use of liquidated damages clauses. See Daniel Int’l Corp. v. Fischbach & Moore, Inc.,

, 1066-67 (5th Cir. 1990); Dahlstrom Corp. v. State Hwy. Comm’n, 

, 615-

16 (5th Cir. 1979); Board of Trustees of State Institutions of Higher Learning v. Johnson, 

, 889-90 (Miss. 1987) (following Dahlstrom). The District demonstrates, and Foote does not

deny, that it could not foresee what precise damages would result from Foote’s delay, especially in

light of the unforeseeable environmental damages associated with the risk of being unable to treat

wastewater adequately. It is well-established that the mere fact that the amount of damages

ultimately suffered by a party was less than the amount payable under the liquidated-damages clause

does not, standing alone, permit courts to recharacterize a liquidated damages provision as a penalty.


                                                 24
See Daniel Int’l 

; see also Advance Tank & Const. Co. v. City of DeSoto,

, 384-85 (N.D. Tex. 1990) (upholding pre-estimate of $500 per day as a valid

liquidated damages provision). The district court found that, given the nature and circumstances

prevailing at the time of the contractual agreement, the amount of damages was not clearly

foreseeable, and thus the parties’ use of the liquidated damages clause was appropriate.

       Foote was free to dispute the feasibility of the amount provided in CA.14 and Table A, but

it neither contested the provision nor provided any evidence showing that the provision was not part

of its bargain with the District. Instead, Foote argues that damages assessed under CA.14 may, in

any event, be reduced in light of CA.34, which expressly permits the District to accept and pay for

portions of the work. Under this theory, Foote seeks an equitable adjustment in light of the work

actually or partially accepted by the District. The district court found that Foote’s request for an

equitable adjustment constituted a disguised attempt to adjust the stipulated damages, but no

contractual basis for such an adjustment exists. Even if such a contractual basis existed for a

reduction of liquidated damages assessed under CA.14, Foote of course waived its right to such a

claim by failing to comply with Paragraphs CA.4 (“CA.4”) and CA.28 (“CA.28”).

       The district court found, and we agree, that the District was authorized to assess liquidated

damages under CA.14.

                                                  C

       Foote contends that its alleged failure to comply with claim provisions in the contract should

be overlooked because the District has failed to demonstrate any prejudice as a result of its inaction.

Foote further contends that the District is merely invoking a hypertechnical construction of the

contract in order to avoid liability regarding actions for which the District is “solely responsible.”


                                                  25
        In Eggers & Higgins & Edwin A. Keeble Assoc., Inc. v. United States, 

(Ct. Cl.

1968), the contract at issue gave the contracting officer discretion to consider claims filed after a 10-

day deadline had passed.28 

. In determining whether the officer abused his

discretion in denying a late claim, the Court of Claims reasoned that “certainly prejudice to defendant

would be relevant and material in the exercise of such judgment.” 

The court further

reasoned that, if a defendant has suffered “substantial prejudice,” the denial of an untimely claim

would not be arbitrary, capricious, or an abuse of discretion. 

the clause at issue

in Eggers, CA.4 and CA.28 make timely submission of claims mandatory. By failing to submit a

claim in accordance with CA.4, Foote was “deemed to have accepted such . . . determination, or

decision as being fair, reasonable, and finally determinative of his obligations and rights under the

Contract.” CA.4. The district court thus found, and we agree, that Foote cannot escape the

consequences of its default by alleging that the District did not suffer prejudice.

        We nevertheless find this argument to be Foote’s and PYCA’s most compelling. Although

we have held above that Foote’s failure to submit a timely protest to O&W’s unilateral change order

#7 was not a mere technical defect, we cannot agree with the Di strict that, as a trustee of public

funds, it has no authority to pay a claim or adjust a credit absent a formal claim or protest by Foote.

Although neither PYCA nor Foote has shown that the District would not suffer prejudice by

dispensing funds contrary to the obligation imposed by the prime contract and EPA regulations, we

do not believe that a different adjustment, in and of itself, would have been a “breach of the public

trust,” as the District contends. Indeed, the District’s support for this argument, Butler v. Board of


        28
         The provision read: “Any claim for adjustment under this Section must be made in writing
within 10 days from the date the change is ordered or within such longer period as may be allowed
by the Contracting 

.

                                                  26
Supervisors for Hinds County, 

(Miss. 1995), is not on all fours with the instant

dispute. In Butler, the Mississippi Supreme Court held that a public agency is immune from

contractual liability where a contractor proceeds with unauthorized work. 

.

In this case, no party disputes that the District actually authorized the work undertaken by PYCA;

consequently, “the policy of protecting the public funds” articulated by Butler is not automatically

paramount to the individual rights asserted by PYCA. Butler simply does not govern this case.

        While we conclude that the District suffered no prejudice by Foote’s failing to file a formal,

written protest, that conclusion, however, does not end our inquiry. While we might be inclined to

construe a contract equitably where a minor failure to comply with a provision occurred, such was

not the case here. Change order #7 was issued following a long dispute regarding Reynolds’s

equipment pricing. Foote unequivocally stated that it understood the notice provisions of the contract

and was notified on or about August 7, 1991, regarding the need to dispute the District’s action on

that date either through further negotiation or by filing a formal protest. Foote failed to undertake

either action. We cannot simply reverse the district court because we find that the District was not

directly prejudiced by Foote’s inaction; Foote is a sophisticated party that understood the provisions

of the contract for which it had bargained. In light of this fact, we cannot reward Foote for its failure;

consequently, we do not find the District’s lack of prejudice to be grounds for reversal.

                                                   IV

        The District, in its cross-claim, argues that Appellants waived any rights they had under the

prime contract by failing to file a formal, written protest with the District. The District suggests that

this failure precludes any relief, even an extension of time for completion of the work. As support

for its position, the District invokes CA.28, which reads as follows:


                                                   27
        If the Contractor makes claim for any damages alleged to have been sustained by
        breach of contract or otherwise, he shall, within ten (10) days after occurrence of the
        alleged breach or within ten (10) days after such damages are alleged to have been
        sustained, whichever date is earlier, file with the Engineer a written, itemized
        statement in triplicate of the details of the alleged breach and the details and amount
        of the alleged damages. The Contractor agrees that unless such statement is made
        and filed as so required, his claim for damages shall be deemed waived, invalid and
        unenforceable, and that he shall not be entitled to any compensation for any such
        alleged damages. Within ten (10) days after the timely filing of such statement, the
        Engineer shall file with the Owner one copy of the statement, together with his
        recommendations for action by the Owner.

The District further contends that, to avoid waiving its claims, Foote was similarly required to submit

to the District a protest, stating “clearly and in detail [its] objections, the reasons therefor, and the

nature and amount of additional compensation, if any, to which [it] claims [it] will be entitled

thereby.”29

        The District contends that Foote’s request for delay and other damages has been waived by

Foote’s failure to comply with the express terms of the contract. In support thereof, the District cites

Galin Corp. v. MCI Telecom. Corp., 

(5th Cir. 1994). Although Foote contends that

Galin is inapposite because it applies New York law, we believe that Galin stands for the useful

proposition that, where the basis for waiver is unambiguously set forth in the contract, the provision

is enforceable. 

. This conclusion is not at odds with the law of Mississippi

regarding waiver. See, e.g., Barbee v. United Dollar Stores, Inc., 

, 1279-80 (Miss.

1976) (defining waiver as “the voluntary and intentional relinquishment of a known right”); Morgan

v. United States Fid. & Guar. Co., 

, 830 (Miss. 1969) (“[A] promise to waive may be


        29
          In its January 18, 1994, Memorandum Opinion, the district court noted that the EPA
Special Conditons require that a contractor file a claim for equitable adjustment with the District
within 30 days of the change at issue. Cf. 40 C.F.R. § 33.1030, ¶ 3(a)(5). A contractor is generally
barred, however, from submitting any claim for equitable adjustment if the claim is made after final
payment to the contractor. See ¶ 3(a)(6).

                                                  28
embodied in an express contract or in a contract implied by the conduct of the parties.”); cf. Reliance

Ins. Co. v. First Mississippi Nat’l Bank, 

, 560 (Miss. 1972) (holding that a surety could

not avail itself of the provision of a construction contract where the city had waived its rights by

failing to serve the contractor with written notice or exercise options under the contract).

       As factual support for its argument that Foote’s claims are waived, the District argues that

Foote did not challenge change order #7 by requesting an extension of time to complete the

construction project or file a written protest with O&W or the District in accordance with CA.13,

CA.28, and CA.4. Although Foote concedes that it did not comply with the foregoing procedures,

Foote argues that the District had actual notice of its claim and cannot assert a technical argument

to defeat it. We cannot understand how Foote can argue that the contract’s formal protest

procedures, which required that it articulate with reasonable certainty and on a timely basis the nature

of its claims, did not control. CA.28, as well as the other notice provisions of the contract, most

certainly provides a basis for a contractually enforceable waiver under the contract.

       Foote did not comply with the contractual provisions. Unexecuted copies of the change order

providing for an additional increase in the District’s credit were sent to Foote on or about July 3,

1991. Foote forwarded copies of the change order to PYCA, and PYCA objected to it. On July 22,

1991, Foote rejected and returned copies of the unexecuted change order to O&W. In response, on

August 7, 1991, the District notified Foote that it was executing the change order as a “unilateral

change order for credit to the owner.” The District informed Foote that it was rejecting all delay-

related claims but advised Foote that it could seek a remedy through renewed negotiation or by

following the provisions of the contract documents.




                                                  29
        No party disputes that the amount of the credit determined and executed by O&W constituted

a decision by the project engineer under Paragraph CA.24 which triggered the 10-day time period

under CA.28 and CA.4 in which to file a protest with O&W and the District. Although a protest by

PYCA had been submitted months earlier (on February 1, 1991), Foote did not file a timely protest

to the unilateral change order as executed. Instead, on August 19, 1991, Foote wrote a letter to

O&W in which it challenged the District’s authority to issue the unilateral change order. While this

letter represented a general challenge to the District’s authority, it did not constitute a formal

objection as required by CA.4 or CA.28.

        Instead, Foote contends that compliance with CA.4 and CA.28 would have been “a useless

act.”   Foote contends that previous communications with O&W were sufficient to comply

substantially with the notice requirements under the contract. The record, however, contains a series

of letters memorializing communications and disputes between PYCA, Foote, and the District

regarding the pricing of electrical equipment supplied by Reynolds, and these letters indicate an

awareness by both sides to the dispute that the contractual provisions in CA.28 governed this

controversy. The tenor of the communications between the parties further establishes that PYCA and

Foote knew, or should have known, that the requirements of notice under CA.4 and CA.28 applied

to all decisions made by the District. The mere fact that previous communications between the

parties were related, in whole or part, to matters finally decided in change order #7 does not provide

an exception to the contract’s notice provisions. The pattern of communications and disputes leading

up to and including the District’s execution of the unilateral change order on August 7, 1991, put

Foote on notice that a formal protest was required. Foote’s undisputed failure to lodge a formal




                                                 30
protest to the execution of the change order does not constitute substantial compliance with the

contract.

        In the alternative, Foote argues that claims it submitted on PYCA’s behalf should be

considered notwithstanding that Foote did not comply with CA.4 and CA.28 in submitting them.30

Those claims include costs associated with a variety of electrical equipment and for delay. As we

have discussed elsewhere in this opinion, each of these claims was barred by the prime contract.

PYCA tries in vain to keep its Foote in the door by arguing that the District’s denial of its claims

operat ed as a waiver of the contractual requirements of CA.4 and CA.28. PYCA’s claims would

have been precluded by the prime contract even if they were not untimely.

        For these reasons, we find, as did the court below, that Foote’s claims—whether tendered as

PYCA’s claims or its own—are barred from judicial review by CA.4 and CA.28.

                                                    V

        Foote filed a cross-claim against the District contending that, if it is liable to PYCA, then the

District is liable to Foote. According to PYCA, Foote’s claim for indemnity triggers the flow-


        30
           Foote and PYCA both repeatedly assert that the District had actual notice of PYCA’s claim,
even if Foote failed to comply with the contractual requirement to present the claim in writing. To
this end, Foote draws our attention to Brinderson Corp. v. Hampton Roads Sanitation Dist., 

(4th Cir. 1986), a case from a sister circuit which held that the EPA Special Conditions at issue
should be applied liberally to avoid injustice. 

. While not disagreeing with the
Fourth Circuit, we observe that applying the Special Conditions literally in this case will not promote
injustice, as Foote seems to argue.
        In Brinderson, the court held that, “when the owner has actual or constructive notice of the
conditions underlying the claim and an opportunity to investigate, that is sufficient” under the notice
provisions of the EPA regulations. 

(citation omitted). Here, even assuming that the District
did have constructive notice of PYCA’s claims, the District had no opportunity to investigate the
central claim—that the adjustment was not equitable—because PYCA and Foote refused to deliver
relevant pricing information to the District. As such, if there is any injustice in strictly construing the
notice requirement in this case, it has been entirely precipitated by PYCA’s and Foote’s own actions.


                                                   31
through31 provisions in PYCA’s subcontract, whereby the District, if liable to Foote, would be

required to make adjustments that would flow through to PYCA. The District argues that any flow-

through benefit available to PYCA by virtue of Foote’s privity with the District depends on whether

Foote preserved any claims against the District related to change order #7. The District contends that

Foote failed to preserve PYCA’s rights by submitting a timely written protest against the District for

an equitable adjustment in accordance with the prime contract. Hence, according to the District,

nothing flows through to PYCA because the District owes nothing to Foote.

        The district court’s ruling in its January 14, 1994 opinion that Foote did not breach its

subcontract with PYCA by merely passing down the District’s adjustment to PYCA did not address

the separate but closely-related issue whether Foote effectively preserved PYCA’s right to challenge

that adjustment. As demonstrated below, PYCA’s primary difficulty in recovering against the District

in this case stems from the undisputed fact that the District issued change order #7 to Foote, not

PYCA.

        On May 5, 1994, the district court granted the District’s motion to strike portions of Foote’s

amended cross-claim alleging that the District breached its contract by not making equitable

adjustments with regard to Foote. The District argues that, consequently, PYCA’s claims against the

District do not survive because Foote failed to file a timely protest; thus, nothing passes through from

PYCA to the District. The District’s argument turns on the notion that, given the contractual

relationship of the parties, the only entity to which PYCA could turn to for an equitable adjustment


        31
           The parties expended much effort in denominating the provision of the contract addressed
in this part of our opinion. Both “flow-through” and “flow-down” are offered as terms which most
accurately describe the three-way contractual relationship between PYCA, Foote, and the District.
For simplicity’s sake, we will refer to the rights at issue as “flow-through” rights, with no particular
gloss to that term intended.

                                                  32
was Foote, the party in privity with the District. Foote counters that its remaining indemnity claim

and the flow-through provisions of the prime contract suffice to preserve any contractual issue with

Foote that implicates PYCA’s right to recover.

       On the issue whether PYCA’s claims flow through Foote to the District, PYCA argues that

its claim passes through to the District without regard to whether Foote properly preserved its claim.

We find that this argument is without merit. For claims to pass through Foote to the District under

the EPA Special Conditions, Foote must properly comply with the necessary notice provisions.

Under the terms of the contract, the remedies clause clearly applies only when a claim has been

properly filed and disallowed. Were this not the case, CA.4 and CA.28 would have no meaning;

aggrieved parties could simply ignore the prime contract and present their claims directly for judicial

review. Foote and PYCA misapprehend this requirement by attributing an interpretation to the term

“flow through” that contradicts the regulations and the terms of the contract as a whole.

       The prime contract mandates that the source of control and funding begins with the District

as the EPA recipient, wit h accountability flowing downward in an orderly procedure for lodging

claims. To reco ver equitable relief, PYCA was required by the prime contract and PYCA’s

subcontract to look to Foote as the source of such relief. Foote, in turn, was required to look to the

District. This procedure is embodied in part by the prime contract at Paragraph CA.40 (“CA.40”):

       Liability of Owner. No person, firm or corporation, other than the Contractor, who
       signed this Contract as such, shall have any interest herein or right hereunder. No
       claim shall be made or be valid either against the Owner or any agent of the Owner
       and neither the Owner nor any agent of the Owner shall be liable for or be held to pay
       any money, except as herein provided . . . .

CA.40 permits only Foote, who signed the contract with the District, to challenge any action taken

by the District. Otherwise, “each lower tier subcontractor could bind the District by the terms of a


                                                 33
contract to which the [D]istrict is not a party.” With the District responsible for overseeing the

disbursement of public funds, the process for submitting claims effecting such funds requires that

relief “flow down” from the District, with Foote and other similarly-situated contractors subject to

accountability for their respective subagreements. Equitable adjustment between parties in privity

at each contractual level depends on the terms and circumstances surrounding each agreement;

indeed, Foote could have granted an equitable adjustment regardless of whether the District agreed.

        As we discussed above, § 33.1030 of the EPA Special Conditions embodies this principle.

That section was designed primarily to protect the public treasury from excessive expenditures, not

to insulate private contractors whose subagreements may differ from those in the regulations. See

Evansville Cement Finishers, Inc. v. Village of New Haven, 

(S.D. Ill. 1991). The

model subagreement suggests as much:

        Since the subagreement is subject to reduction under this clause by reason of defective
        cost or pricing data submitted in connection with lower tier subagreements, the
        contractor may wish to include a clause in each lower tier subagreement requiring the
        lower tier subcontractor to appropriately indemnify the contractor. It is also expected
        that any lower tier subcontractor subject to indemnification will generally require
        substantially similar indemnification for defective cost or pricing data submitted by
        lower tier contractors.

40 C.F.R. § 33.1030, ¶ 8(b). The recommendation that subagreements contain indemnification

clauses arises because the contractor, not the District, is generally accountable for defective cost data

or pricing in connection with a lower tier subagreement. Foote did not include an indemnification

clause in its contract with PYCA.

        The record reflects that, although PYCA did not enforce its right pursuant to the EPA

regulations to an indemnification provision, PYCA did retain rights in its contract with Reynolds to




                                                  34
make changes subject to an equitable adjustment. PYCA’s purchase order with Reynolds states in

pertinent part:

       Buyer reserves the right to change specifications, such changes to be made only by
       duly authorized representatives of Buyer. Any differences in costs resulting from
       changes shall be equitabl[y] adjusted and the Order shall be altered in writing
       accordingly.

Other portions of PYCA’s purchase order with Reynolds also allowed PYCA to cancel the order,

except for mere “convenience,” subject to certain cancellation charges, including a “reasonable

amount for profit.” There is no indication that PYCA ever pursued the option of canceling the order

or, at the very least, determining what amount of cancellation charges, if any, would apply.

       Instead, Foote and PYCA seek to exclude Reynolds’s pricing data as entirely exempt from

the pricing inquiry. This argument runs aground on § 33.290 of the EPA Special Conditions. These

regulations, incorporated into the prime contract, require the District to “conduct a cost analysis of

all negotiated change orders and all negotiated subagreements estimated to exceed $10,000.” 40

C.F.R. § 33.290. Foote and PYCA attempt to circumvent the EPA Special Conditions by pointing

to the district court’s January 14, 1994 opinion, which observed that the contract and model

subagreement clauses themselves did not expressly permit examination of a supplier’s cost data or

examining pricing of other suppliers.32 The procurement pricing requirements were limited to the tier

“immediately below the contractor (i.e., subagreements awarded by the contractor).” 48 Fed. Reg.

12,922, 12,924 (1983). Foote and PYCA manifestly disregard, however, the district court’s

observation that examination is allowed when a subcontractor immediately below a contractor has



       32
          Indeed, the district court noted that 40 C.F.R. § 33.295, one of the EPA Special Conditions,
“does not apply to a supplier’s procurement of materials to produce equipment, materials and catalog,
off the shelf, or manufactured items.”

                                                 35
impliedly agreed in his subcontract to be accountable for defective cost or pricing data in accordance

with the prime contract. Looking to the written agreements of the parties taken as a whole, the

district court found that Reynolds had so agreed.

        It is undisputed that Reynolds knew that PYCA was subject to the requirements of § 33.1030,

including the provisions for disclosure of records and auditing. Reynolds expressly agreed and

represented that “[s]eller shall be aware of the necessity to review the entire contract documents, not

just individual sections, to determine the total responsibilities and requirements.” This provision

mirrored exactly the language in PYCA’s agreement with Foote. Reynolds also agreed that “[s]eller

is bound to PYCA Industries, Inc. by all terms and conditions of the contract documents as applicable

to the material/equipment described herein.” Additionally, Reynolds agreed that PYCA could make

changes related to the equipment subject to an equitable adjustment. Finally, Reynolds expressly

agreed and represented in a rider signed on January 11, 1990, that the equipment “will satisfy all the

requirements of the contract documents.”33


        33
          As a collateral issue, the district court observed that the prime contract contained an implied
covenant of good faith and fair dealing, that is, that no party to any subagreement would take any
action to defeat the purpose of the prime contract. See Cenac v. Murry, 

, 1272
(Miss. 1992) (“All contracts contain an implied covenant of good faith and fair dealing in performance
and enforcement.”); cf. Ebasco Servs., Inc. v. United States, 

, 382 (Fed. Cl. 1997)
(“Every government contract contains an implied covenant of good faith and fair dealing.”).
Arguably, PYCA, Foote, and Reynolds all violated this implied covenant.
        In the case at bar, the change order resulted from PYCA’s proposal and tender of electrical
equipment furnished by Reynolds. O&W, as the District’s representative, had an affirmative duty to
make an independent cost estimate and price analysis to verify that the estimate prepared by PYCA
was fair and reasonable. The prime contract provided that both PYCA and Foote were accountable
for defective cost or pricing data, and that requirement was expressly incorporated into Reynolds’s
agreement with PYCA. Indeed, PYCA was required to obtain the supporting cost data from
Reynolds. Because both the prime contract and the various subagreements all provided for equitable
adjustments, PYCA was allowed to adjust its contract with Reynolds to reflect the District’s
determination regarding the pricing of the equipment, but failed to do so.
        PYCA’s contention now that it was locked into its agreement with Reynolds is arguably not

                                                  36
       Reynolds (and thus PYCA) never complied with these regulations. Although PYCA initially

made limited disclosures regarding its equipment, those disclosures did not provide complete

information. As early as April 1990, PYCA advised its suppliers that changes involving the electrical

equipment would be “subject to a federal audit” in accordance with EPA regulations. On January 25,

1991, following the District’s submissions on the proposed changes, the DEQ wrote a letter to the

District with regard to change order #7 stating that the cost and pricing information was insufficient

and that additional information was required. On March 11, 1991, the DEQ again addressed the

feasibility of change order #7, advising the District that the pricing information must be substantiated

pursuant to EPA regulations.

       Reynolds refused to submit the information requested, and Foote advised the District of

Reynolds’s position on April 26, 1991. The record reflects that, when the District did not receive the

information, O&W obtained a quote from Square D Company (“Square D”) which was used in

adjusting the amount due to the District. O&W then reported to the District that PYCA and Foote

could have negotiated a lower price with their suppliers, at an early point in the project, which would

have yielded “a significant savings to the District as originally promoted [by PYCA and Foote].”

Finding that PYCA and Foote failed in this regard, O&W’s adjustments to Foote’s contract reflected

“the amount of credit if negotiations had been handled properly by the contractor.” On July 2, 1991,

the EPA approved the change order based on O&W’s determination using Square D’s quote.




made in good faith.

                                                  37
        PYCA challenges O&W’s pricing calculations based on “estimates” instead of “actual cost

data.”34 PYCA further contends that its “actual” cost is presumed to be reasonable without regard

to whether the data supporting it is inaccurate or defective and that it “provided the District with all

of the cost information it received from its equipment supplier.” While all of these assertions bear

some truth, PYCA’s argument fails to account for Reynolds’s failure to disclose, pursuant to

contract, its cost information to PYCA, which rendered PYCA’s disclosure incomplete. PYCA

instead argues that it was placed in the “inequitable position of receiving less funds for the equipment

than it was required to pay its supplier,” but this result was hardly inevitable. PYCA, for whatever

reason, simply failed to assert its rights under its contract with Reynolds. The District contends that

allowing PYCA’s claims to flow through to the District under these circumstances would violate the

terms of the prime contract because the District would be unable to contest Reynolds’s pricing of the

electrical equipment. The district court found, and we agree, that PYCA’s decision to concur in

Reynolds’s refusal to comply with the disclosure and audit requirements forecloses any attempt by

PYCA to argue in Reynolds’s stead that the District’s adjustment was inequitable.

        For the reasons set forth above, we conclude that PYCA’s claims cannot flow through to the

District under circumstances that woul d produce a result not contemplated by the contract or

pertinent EPA regulations.



        34
          PYCA challenges the District’s authority to make any adjustments that effect a supplier’s
profit margin, but we find that the District clearly retained the authority to reduce negotiated profits
embedded in Foote’s contract and that Foote could adjust PYCA’s contract accordingly. See, e.g.,
40 C.F.R. § 33.1030, ¶ 8(a) (requiring that any price including profit negotiated in connection with
a subagreement may be reduced if incomplete or inaccurate). Additionally, as we noted above, the
prime contract and PYCA’s subagreement with Reynolds also specifically gave PYCA the right to
demand an equitable adjustment from Reynolds. Consequently, we find no support for Foote’s and
PYCA’s thesis that the District could not question Reynolds’s pricing.

                                                  38
                                                   VI

        PYCA and Foote next argue that, in any event, the District’s unilateral adjustment pursuant

to change order #7 was inequitable. We disagree. Foote’s and PYCA’s argument is largely based

on their misconstruction of the contract and the respective obligations of the parties, and we find their

contentions to be without merit.

        At the outset, we observe that a central, guiding principle underlying equitable relief is that

“[h]e who seeks equity must do equity.” Grant v. State, 

(Miss. 1996). In

Mississippi, this principle applies in commercial transactions as well as private actions against the

government where parties seek the benefit of an equitable ruling. See, e.g., Pongetti v. Bankers Trust

Sav. & Loan Ass’n, 

, 824 (Miss. 1979); Magnolia Fed. Sav. & Loan Ass’n v. Randal

Craft Realty Co., Inc., 

, 1313 (Miss. 1977); Homes, Inc. v. Anderson, 

,

683 (Miss. 1970); Mississippi State Hwy. Comm’n v. Spencer, 

, 504-05 (Miss. 1958).

As we will demonstrate, Appellants shot themselves in the Foote by not performing equitably with

respect to the District.

        The District contends that the Square D quote was necessary because neither Foote nor

PYCA was diligent in negotiating a fair price for the electrical equipment. PYCA, on the other hand,

argues that the District’s reliance on Square D’s price quotation was arbitrary and self-serving. Yet

nowhere in the record does PYCA suggest an alternative approach that the District could have used

to exercise its rights under the contract. Instead, PYCA merely avers that its definit on of an
                                                                                     i

“equitable price” is the preferable one; we note, however, that PYCA’s construction of the

contract—disallowing review of the sort undertaken by the District and O&W—would have placed




                                                  39
little or no burden on O&W in ascertaining whether the pricing of the equipment installed by PYCA

was reasonable, defective, or incomplete.

       In addition, we agree with the district court that the mere fact that complete information

regarding Reynolds’s pricing was not available to the District indicates that neither PYCA nor Foote

can prevail on an equitable theory. Because Foote and PYCA refused to supply necessary

information, the District had to expend additional resources in an attempt to assure compliance with

EPA regulations, including seeking out and relying on the Square D quote. PYCA was responsible

under the contract and the regulations for producing complete information regarding the equipment

it had purchased and for do ing so in a timely fashion; its failure to comply with these provisions

cannot now be addressed by petitioning the court for equitable relief.35 The district court could only

evaluate the District’s determination based on information before it “at the time of submission,” 40

C.F.R. § 33.1030, ¶ 8(a), namely, the terms of its contract and of PYCA’s contract with Reynolds.




       35
           We note with irony that Reynolds agreed in its contract with PYCA to allow an adjustment
to its price subject to an equitable adjustment imposed on PYCA by Foote or the District. Reynolds
then, of course, declined to provide the information necessary for such an equitable adjustment to
benefit PYCA. Foote’s and PYCA’s having agreed with Reynolds, however, the consequences of
Reynolds’s failure to disclose is imputed to them. Simply put, PYCA’s failure to assert rights against
Reynolds that were clearly available to PYCA under the contract and PYCA’s subagreement
prevented an equitable adjustment. Such a failure amounts to a waiver of any equitable remedy. See,
e.g., Barrow Utils. & Elec. Co-op, Inc. v. United States, 20 Cl.Ct. 113, 121 (Cl. Ct. 1990); 

; Marks v. Toney, 

(Miss. 1944).
         Naturally, PYCA disputes this characterization of its contract with Reynolds, arguing that the
district court erred by holding “that PYCA should have breached its contract with Reynolds.” We
disagree with PYCA’s reading of the district court’s opinion. At no point did the court below
sanction a wilful breach of contract or opine that PYCA could cancel its contract with Reynolds with
impunity. Instead, the district court clearly held, and we agree, that the language of the prime
contract and of PYCA’s subcontracts allowed PYCA to alter its agreement with Reynolds subject
to an equitable adjustment. Such a reading is not error.

                                                 40
The record reflects that the District’s reliance upon and calculation based on the Square D quote was

reasonable under the circumstances.

       As a related matter, PYCA contends that the unilateral adjustment by the District was made

in bad faith because PYCA had begun to install the equipment on the assumption that the adjustment

would be only $161, 180. The record, however, does not support this assertion. The underground

electrical work began in April 1990 and, by January 1991, the project had already progressed to a

point where the District could not revert to the previous design. Additionally, Foote and PYCA had

clear notice that the $161,180 adjustment was only preliminary. On or about January 25, 1991, O&W

advised Foote that the $161,180 figure was “the minimum true fair credit” for the proposed revisions

and that O&W reserved the right to increase the credit further following review by the Corps of

Engineers and the Mississippi Bureau of Pollution Control. On February 4, 1991, PYCA and

Reynolds made an agreement that PYCA would not be liable to Reynolds for any amount in excess

of the District’s pricing. The fact that the ultimate adjustment by the District, in August 1991, did

not comport with a private agreement between PYCA and Reynolds does not, standing alone, raise

a genuine issue of material fact with regard to the District’s alleged bad faith. Similarly, PYCA’s

contention that the District made the “maximum” adjustment possible based on the Square D quote

does not demonstrate bad faith or that the adjustment was, in fact, inequitable.

       Finally, the district court found that, to the extent that Foote and PYCA seek equitable relief

based on delay, such claims lack merit. For example, Foote admits that on December 3, 1990, it

ordered PYCA “not to proceed with any electrical work associated with the change order until the

pricing of the equipment could be finalized.” Foote also concedes that it did not order PYCA to

proceed with the electrical work until January 28, 1991, and that PYCA did not begin this process


                                                41
until on or about February 6, 1991. The District contends, and Foote does not show otherwise, that

the resulting 65-day delay caused by the standoff was not authorized by any contractual provision.

Astoundingly, Foote and PYCA argue that they, not the District, are entitled to damages. As

observed previously by the district court, Foote was not perm itted to “hold the project hostage”

merely because Foote, PYCA, or Reynolds could not agree on the amount of the equitable

adjustment.36

        For the above reasons, the district court found, and we agree, that none of the claims

submitted by PYCA or Foote warrants a further equitable adjustment or award of damages.

                                                   VII

        The final issue remaining for our consideration is whether O&W is entitled to the protection

of sovereign immunity enjoyed by the District. On October 3, 1994, the district court issued a

Memorandum Opinion finding that PYCA’s claims for punitive damages against the District should

be dismissed but declining to extend the protection of sovereign immunity to the District. On

November 8, 1994, the district court issued an order granting O&W’s motion for clarification,

holding that O&W, as the District’s agent, was not liable to PYCA for punitive damages under the

law of agency. Although the issue of O&W’s derivative immunity on the punitive damages claim was



        36
           Although it is not dispositive to the issues before us, we disagree with the district court that
judicial review of this contract is of a limited nature. In making that determination, the district court
sought to “[a]nalogiz[e] to federal contract cases” in observing that “the contractor must seek the
relief provided for under the contract or be barred from any relief in the courts.” Crown Coat Front
Co. v. United States, 

, 512 (1967). The Crown Coat Front case is inapposite to the
dispute at bar. Crown Coat Front concerned the standard of review of actions by a federal
administrative agency. See 

(noting that claimant must exhaust administrative remedies
and that judicial review is restricted to a determination whether the agency’s actions were arbitrary
and capricious or unsupported by substantial evidence). Administrative law principles do not apply
to this contractual dispute between a state and its private contractors.

                                                   42
not appealed to this court, we did consider and affirm, on interlocutory appeal, the district court’s

ruling with regard to the District’s exposure to punitive damages. At an early point in our analysis,

we held that “[a]s a political subdivision, the District is entitled to sovereign immunity from PYCA’s

tort claims.” PYCA 

. We then dismissed the punitive damages appeal with respect

to Foote and O&W for want of appellate jurisdiction, noting at the time that this issue had not been

certified for appeal by the district court. See 

On April 28, 1997, the district court held

that O&W is in fact entitled to sovereign immunity as the District’s agent. Although we did not reach

the agency questions relative to O&W in PYCA I, we today find no factual or legal basis to determine

that O&W, as the District’s agent, is outside the scope of immunity enjoyed by the District.

       PYCA contends that O&W can be liable for its own acts even though the District may itself

have tort immunity. PYCA seeks in part to vindicate its position with an attempt to convince us that

O&W is not entitled to immunity because it is an independent contractor as opposed to an employee

of the District’s, but we find that approach unpersuasive. Although some cases suggest that a

contractor’s negligent performance of its duties might fall outside the scope of tort immunity, see,

e.g., McKay v. Boyd Constr. Co., 

(Miss. 1990); Wade v. Gray, 

(Miss.

1913); Envirologix Corp. v. City of Waukesha, 

(Wis. Ct. App. 1995), none of those

decisions addresses the situation presented by the case at bar, namely, whether an agent contractor

employed by a sovereign principal and bound to that principal by contract and regulation, enjoys the

same sovereign immunity.37 We find the better course in the instant drama to be that a contractor is


       37
          We note that the Envirologix opinion, while cited by PYCA for the principle that a project
engineer as agent to a municipality could be liable to a subcontractor for tortious interference with
contract, actually cuts against PYCA. In Envirologix, the Wisconsin Court of Appeals interpreted
a portion of Wisconsin’s sovereign immunity statute granting immunity to Volunteer Fire
Departments and municipalities for the intentional torts of their officers, officials, and agents. See

                                                 43
not independently liable for alleged wrongs committed pursuant to instructions from the principal or

in accordance with directions from a public representative to perform an essential part of the contract.

As set forth below, the act ions of the District and of O&W in this case were governed by various

contractual documents and pertinent EPA regulations, and O&W’s conduct was at all times within

the range of actions contemplated by those documents and thus was protected.

        PYCA contends that principles of agency do not shield O&W in this case. We disagree,

primarily because such a conclusion ignores the hornbook agency principle that, if a principal cannot

be held liable for performing an act, neither can the agent whom the principle directed to perform the

act, even if the agent would have been liable in the absence of such privilege. In Wood v. Mississippi,

(Miss. 1962), cited in both rulings by the district court on this subject, the Mississippi

Supreme Court relied on the principle that “[a]n agent is not liable for torts committed by his principal

personally; and if an act would not render the principal liable if done by him, under ordinary

circumstances, an agent performing the act will not be liable.” 

cf. Vestal v. Oden, 

, 957 (Miss. 1986) (same). The Wood Court also directed us to the Restatement of

Agency, § 345: “An agent is privileged to do what otherwise would constitute a tort if his principal

is privileged to have an agent do it and has authorized the agent to do it.” 

Although

the facts in Wood differ from those in the instant case (namely in its distinction between 

. In construing the statute, the court observed that it extends agency protection
only in instances involving “acts done in the exercise of legislative, quasi-legislative or judicial
functions.” 

In that case, the court found that there was insufficient evidence to support
an agency designation for the independent contractor at issue and remanded for additional proof. See

We are not confronted with that situation in the instant case, since the district court found
as a matter of law that O&W was the agent of the district; in any event, interpretation of Wisconsin
statutes hardly sheds light on an entirely different—in form and substance—Mississippi legislative
enactment.

                                                  44
privilege and sovereign immunity), we find that the same result applies to privileges as to immunities.

By analogy, because O&W was operating within the scope of immunity granted to the District, we

find that O&W likewise will be shielded by the same immunity.

        This conclusion is demanded by recourse to the record in this case. Our review in this matter

included the allegations of the complaint and other relevant evidence surrounding the principal-agent

relationship between the District and O&W. PYCA’s allegations, taken as a whole, repeatedly

characterize the District as taking action jointly with and through its employee, O&W, with regard

to the change order and the amount of credit due to the District. For example, PYCA alleges that

O&W “was directed by the District to prepare the necessary drawings and cost breakdowns for the

proposed changes.” PYCA further alleges that “the District, through [O&W], improperly and

illegally sought price quotations from additional electrical equipment manufacturers.” PYCA

contends that the district court ruled in its January 1994 opinion that “the controlling contract clauses

in this case did not allow O&W to examine cost data of a supplier or to bid-shop the price of the

equipment to ascertain the cost of the equipment to be used in calculating the amount of an equitable

adjustment.” Upon this premise, PYCA argues that O&W’s actions were unlawful and outside the

scope of tort liability enjoyed by the District.

        PYCA’s arguments are internally inconsistent and without merit; additionally, the thrust of

their contention misapprehends the district court’s earlier opinion. In the 1994 opinion, the district

court ruled only that the model contract clauses do not expressly allow the District to examine a

supplier’s cost data or to bid-shop the price of equipment in ascertaining an equitable adjustment.

The district court’s first opinion reserved for further development the issue of the District’s and

O&W’s tort immunity; it did not conclude that O&W’s actions were improper or unlawful.


                                                   45
Moreover, and contrary to PYCA’s argument, the district court never found that O&W acted illegally

so as to remove from itself the shield of tort immunity, and we find no evidence to support such an

interpretation of the district court’s rulings. To the contrary, we find that PYCA’s allegation that

O&W acted illegally in seeking other price quotations in determining an equitable adjustment fails to

show that O&W, as the District’s agent, does not share in the District’s immunity with regard to

Count V.

       Finally, we conclude that EPA regulations support the conclusion that O&W is entitled to the

District’s grant of immunity. PYCA does not dispute that 40 C.F.R. § 33.1030 was incorporated into

its subcontract with Foote, and, in fact, PYCA invokes § 33.1030 by contending that the adjustment

provided therein was not equitable. PYCA’s argument that O&W acted illegally and outside the

scope of immunity ignores the district court’s separate finding that EPA regulations, incorporated by

the contract, authorized the District (and its agents) to conduct investigations relevant to work

changes, make unilateral determinations regarding work changes, and make any necessary equitable

adjustments ultimately impacting PYCA through the flow-down provisions of the contract.

       We therefore find that the EPA regulations impose affirmative obligations on both the District

and O&W38 and that O&W was entitled to summary judgment on the issue of sovereign immunity.

                                           CONCLUSION




       38
          For good reason, the regulations are designed “to protect the public treasury from excessive
expenditures.” Evansville Cement 

; see also J.A. Jones Const. Co. and
Daidone Elec. Of New York, Inc. v. City of New York, 

, 502 (S.D.N.Y. 1990).
We addressed, in Part 

, whether the actual adjustments were, in fact, “equitable” or instead
beyond the scope of the contract. We find here simply that actions taken by O&W were within the
scope of immunity enjoyed by the District.

                                                 46
       For the foregoing reasons, we AFFIRM the judgment of the district court in all respects.39




       39
          Foote’s motion to dismiss Harrison County’s appeal of the district court’s October 1994
order is DENIED.

                                               47