Design-build contracting has been common for decades. When statutes or rules based on traditional construct-only procurements interface with design-build practices, challenges arise. Two cases in this issue are illustrative.
A California appellate court addressed a novel issue: does the statute conferring rights on listed subcontractors on fixed-price public works contracts grant a remedy to a would-be subcontractor on a public works design-build project? The sub was denied a remedy, but only because the prospective subcontract was too small to qualify under the Subcontracting Practices Act.
A Colorado appeals court considered an incorporation by reference of a geotechnical report into a design-build subcontract. Was a recommendation in the report superseded by the scope of the request for a price quotation and the back-and-forth shop drawing procedures that determined the final design?
The third case in this issue involved an unobservable site condition. A note in the contract conveyed inaccurate information, but another contract provision contradicted that note. And, the contractor had previously performed work on the same structure. Should the contractor have anticipated the site condition notwithstanding the misrepresentation?
