By Bruce Jervis
A federal construction project in Alaska has provided another example of owners trying to have it both ways with site condition information. During bid preparation, the site was buried in snow. The government provided logs from eight soil test borings. Actual subsurface conditions proved to be very different from the indications in the logs. The government then attempted to rely on general cautionary comments and descriptive terms it had included in the contract documents.
Project owners are working at cross purposes when it comes to site data. They provide specific information to reduce price contingencies and encourage tight bidding. Yet, fearing the liability that might result, they seek to limit or disclaim the significance of that information.
On the Alaska project, the owner’s tactic was unsuccessful. It was ruled that broad exculpatory language does not negate specific information -- such as soil boring logs -- provided to bidders with the expectation the information will be relied upon.
Where does this leave contractors? Can broad disclaimers be ignored with impunity? The best practice is a thorough independent investigation of the site. But sometimes, as on the Alaska project, this is not feasible. Bidders may be forced to rely on site information furnished by the owner notwithstanding the owner’s attempt to disclaim responsibility for the accuracy of that information. I welcome your comments.