In summary, I have concluded that on the proper construction of cl 71.8.2, the provision requires an adjustment to the "determined amount" which is to be calculated by deducting or adding back the amounts which answer the description "any amount that has been paid pursuant to the SoP Act", not merely amounts paid pursuant to the SoP Act which are part "of the determined amounts", as the Department submitted and the primary judge accepted. Applying the correct construction of cl 71.8.2, the calculation required by disregarding the amount of the SoP Act payments is to deduct or add back from the "determined amount" in column 4 of the above tables, the SoP Act payments in column 2, with the consequence that for the purpose of assessing whether the threshold of $500,000 had been achieved, cl 71.8.2 requires payment by one party (Lahey) to the other (the Department) of the amount in column 3, which for each of the Contracts exceeds the threshold of $500,000. Accordingly, Lahey was not precluded from litigating the disputes the subject of the issues determined by the expert under each of the Contracts. It follows that the primary judge erred in summarily dismissing the proceedings.
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