Construction contract documents frequently contain a contradiction. The project owner and design professional include a number of affirmative representations regarding the job site and the nature of the work. This information is intended not only to inform bidders, but to encourage tight, competitive pricing which will benefit the owner.
The contradiction arises when the documents go on to disclaim the accuracy of this information. It is provided for general background purposes only; it can’t be relied on; bidders are responsible for making their own independent assessment; etcetera.
On a recent federal project, a contract of this nature was construed against the government. The contractor was entitled to rely on an affirmative representation notwithstanding the broad exculpatory language that accompanied it. But this contractor was fortunate. The government had omitted the standard Site Investigation clause. The contractor had not been obligated to conduct a pre-bid site inspection which might have alerted the contractor to the inaccuracy of the government’s information.
What is your opinion regarding contract language of this nature? Does it make sense for owners and designers to make affirmative representations while disclaiming responsibility for those representations? Where do contractors stand when faced with this contradictory language? I welcome your comments.
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