Pre-bid site visits are conducted to familiarize potential bidders with the physical conditions affecting the work. Project owners host these events to encourage tighter, more competitive bidding. Questions are asked, answers delivered. Owners frequently publish and distribute these Q & A’s to assure a level playing field.
This leads to a question: Are the statements made during a site visit binding on the project owner? Contract documents sometimes expressly disclaim owner responsibility for this information, undermining the purpose of encouraging tight bidding. This can create some interesting scenarios.
One site visit revealed a contractor working for a different public authority already performing work at the site, blocking access for performance of the work under bid. The prospective bidders recoiled. The project owner assured them the existing work would be completed before the new work commenced. The contract documents disclaimed responsibility for this representation, but the owner amended the bid solicitation to make the answer part of “any resultant contract.” It was ruled that the project owner expressly warranted timely unimpeded site access. This case suggests that project owners can’t have it both ways. They can’t provide site information to foster tight bidding and then disclaim responsibility for that information. But shouldn’t owners be able to answer questions at the site without always creating a contractual warranty? Your comments are welcomed.
