The U.S. Court of Appeals for the 10th Circuit has affirmed the jury verdict and judgment in favor of engineering firm AECOM Technical Services in its long-running dispute with the Flatiron-AECOM joint venture (JV). The case involves construction of 12.5 miles of express lanes on State Highway C-470 just south of Denver, Colorado. AECOM brought suit to recover $5 million in change order work. The case was tried over 18 days in 2024. The jury awarded $5 million to AECOM on its claim, and $0 to the JV on its counterclaims, as previously reported.
The JV had counterclaimed for over $260 million in delay damages despite a $10 million liability cap in the parties’ subcontract. The JV offered various arguments to avoid the cap. For example, it characterized its claims as a breach of the teaming agreement entered for the bidding phase, not the subcontract that replaced it after award. It also tried to assert fraud claims some three years after the deadline to amend the pleadings had passed. The trial court rejected all those efforts to avoid the cap, and the 10th Circuit affirmed.
The trial and appellate courts also rejected the JV’s motion for judgment against itself. Yes, you read that right. Just before trial, the JV moved for entry of judgment against itself on the plaintiff’s affirmative claim for $5 million. This, according to the JV, mooted the plaintiff’s claim, barred the plaintiff from putting on its affirmative case, and warranted realignment of the parties. The trial court denied the JV’s motion for judgment against itself, which would effectively force the plaintiff to unwillingly settle its claim. As the 10th Circuit noted in affirming the trial court’s ruling, “a party has a right to refuse a settlement offer and to litigate to its heart’s content.”
One of the issues that the parties litigated was waiver. The JV argued that AECOM’s claim was barred because it was not presented to the parties’ dispute board — a contractual condition precedent to bringing suit. The 10th Circuit found sufficient evidence from which the jury could have concluded that the JV waived this requirement. This includes evidence that the JV had (1) passed along a previous change order without requiring presentation to the dispute board and (2) stopped sending change orders to the dispute board but instead was “shelving them to be sorted out in litigation.” This conduct was more than enough evidence for the jury to reasonably conclude that the JV had intentionally relinquished its right to require presentation of claims to the control board as a condition precedent to filing suit.
These and other interesting issues are explored in the court’s 37-page opinion in AECOM Technical Services, Inc. v. Flatiron AECOM, LLC, Case No. 25-1140, — F.4th —-, 2026 WL 2358689 (10th Cir. August 14, 2026), which can be found here.