ACPA Concrete Pavement Progress Quarter 3 2020

www.acpa.org Quarter 3, 2020 21 Do Repair Provisions Require Contractors to Accept Design Flaws? By Thomas R. Olson and Rielly J. Lund YOU HAVE FINISHED YOUR WORK —complying with the plans and specifica- tions throughout the project—when the engineer calls. Your heart drops because you knowwhat they are going to say, after all engineers have made this call before: “There is an issue with the project and you need to fix it, oh and these repairs will be on your dime.” When you ask what you did to cause the project issues the engineer tells you that it does not matter if you have done anything wrong, the repair/ protection/warranty provisions require you to make any required repairs at your own cost. We have seen this situation on countless projects, in countless states. Un- fortunately, many contractors are used to this and make the repairs rather than standing up for their rights. As an example from a recent project we were involved in, I will give you some of the brief facts. A contractor was constructing a concrete highway. During the project, the contractor fully followed the design and specifications. This includes excavation of subgrade, compaction, moisture/density, temperature range for pour, pavement thickness, jointing, cure time, etc. Despite this, the pavement still cracked. We reviewed every technical requirement and test in the contract and determined that the contractor had met all of the unambiguous, testable requirements. Still, the engineer relied upon the repair provisions of the contract to require the pavement to be removed and replaced at the contractor’s cost. Working with an expert, we helped prepare a report discussing all of the contractual requirements, and how the contractor had met them. The expert then identified numer- ous design deficiencies that may have contributed to the issue. The engineer’s response was baffling, yet unfortunately common. In general, the engineer said the following: “If the contractor asserts the construction in the area of the uncontrolled cracking has been completed according to the specifications, the situation is addressed in specification X for repair/ warranty.” Basically, the engineer did not care what caused the cracking, it was the contractor’s responsibility, despite a standard contract clause stating: “Contractor shall not be responsible for the adequacy of the per- formance or design criteria specified by owner or engineer.” The argument that the engineer is making is two-fold. First, the repair/ warranty provision is not dependent upon the cause of failure. Second, the repair/warranty provision disclaims any design responsibility on the part of the owner/engineer. The first argument ignores some very basic legal standards of contract inter- pretation. “The primary goal of contract interpretation is to determine and enforce the intent of the parties.” Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2011). “Where there is a written instrument, the intent of the parties is determined from the plain language of the in- strument itself.” Id. If a contract is unambiguous, the “contract language must be given its plain and ordinary meaning, and shall be enforced by the courts even if the result is harsh.” Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn. 2003). Additionally, contracts should be interpreted in a way that grants each of its provisions meaning, thereby construing the contract as a whole and attempting to reconcile all of its clauses. See Current Technology Concepts, Inc., 530 N.W.2d 539, 543 (Minn. 1995); Knut. Co. v. Knutson Const. Co., 433 N.W2d 149, 151 (Minn. Ct. App. 1988); Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 525 (Minn. 1990). Indeed, “[b]ecause of the presumption that the parties intended the language used to have effect, [the court] will attempt to avoid an interpretation of the contract that would render a provisionmeaningless.” Chergosky, 463 N.W.2d at 525. When an engineer argues that repair/warranty specifications apportions the risk of any failures to the contractor, the engineer’s interpretation ignores the express language of the contract, which states: “Contractor shall not be responsible for the adequacy of the performance or design criteria specified by owner or engineer.” Based on this clear and unam- biguous contract language, if a failure is caused by the inadequacy of the continues on page 22 »