03/01/2023

Editor's Notes

The documentation of a construction agreement can be voluminous and complex. There may be layers of interrelated documents with additional provisions incorporated by reference. This creates a situation in which each party to a dispute can present a self-serving reading of the contract documents. The two cases in this issue are examples.

 

A public project owner issued a request for qualifications (RFQ) seeking potential bidders for a highway construction project. The RFQ said the owner would obtain necessary rights-of-way (ROW) prior to the issuance of the request for proposals (RFP). But the RFP and the contract documents required the contractor to provide services in support of the owner’s acquisition of the ROWs. Which party assumed the risk of delay in ROW acquisition?

 

In the second case, a private negotiated contract provided a geotechnical report “for information purposes only.” The contract disclaimed responsibility for the accuracy of the information and expressly excluded the report from the contract documents. However, a contract drawing included a note mandating “strict” adherence to the recommendations in the report. Was the contractor obligated to conform to the recommendations?

 

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