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04/13/2018

Editor’s Notes

The scope and ramifications of a pre-bid site inspection are frequently misunderstood. When submitting a bid, the contractor probably acknowledges it has familiarized itself with the physical conditions in the field. In fact, the contractor may or may not have availed itself of the opportunity to inspect the site prior to bid submittal. In either event, the contractor will be charged with knowledge of site conditions that could have been observed during a reasonable inspection.


A federal appeals court recently applied this rule. A contractor, who failed to participate in a pre-bid site inspection, was on notice of saturated subsurface soils. Such conditions were visible on the surface of the site, only 100 feet from the excavation area.


In so ruling, however, the appeals court emphasized that contractors are not expected to conduct pre-bid invasive or destructive testing. Nor are they required to seek independent expert technical evaluation. For instance, in this case, the contractor was not required to drill test borings or hire a geotechnical engineer. In general, reasonable powers of observation and the interpretive ability of a prudent contractor are all that is required.


The other case in this issue involved a project owner’s defense against the mechanic’s liens of unpaid subcontractors. Having obtained a judgment against the prime contractor in an amount that included the unsatisfied liens, the owner could not contend that the liens were invalid.

 

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