ACPA Concrete Pavement Progress Quarter 3 2020

www.acpa.org Quarter 3, 2020 23 C O N S T R U C T I O N L A W References: 1. The legal principles discussed in this article are in no way guaranteed to apply in the jurisdiction where your project takes place. For each specific fact scenario, an attorney should be consulted. 2. Even without this clause, the Implied Warranty of Design which states that “if a contractor is bound to build according to the plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.” McCree & Co. v. State, 91 N.W.2d 713, 722 (Minn. 1958) (quoting U.S. v. Spearing, 248 U.S. 132, 136 (1918). 3. Similarly, the cases enforcing a disclaimer have required a clear indication in the contract documents that the plans and specifications contain defects. See, e.g. PCL Const. Services, Inc. v. U.S., 47 Fed. Cl. 745, 787 (holding that the disclaimer was sufficient because the contract documents made it very clear that the design was likely to be incomplete); Wunderlich Contracting Co. v. U.S., 351 F.2d 956, 961, 963-64 (Ct. Cl. 1965) (holding that the government was not liable for defective specifications where the government had clearly indicated at the pre-bid conference that the plans and specifications contained numerous defects and the invitation allowed alternate bids with longer performance times); Appeals of Loral Aerospace Corp., 97-2 BCA P 29128 (A.S.B.C.A. 1997) (holding that the disclaimer, which listed the types of deficiencies the contractor needed to resolve prior to bidding, barred a defective specifications claim as to those types of deficiencies). 4. The disclaimer reads: “In specifying the various types of pipe and joints which will be allowed and the methods of making same, the Engineer or Owner assumes no responsibility regarding the contractor’s ability to meet the infiltration limits as set forth, as it shall be the contractor’s sole responsibility to meet these infiltration limits. . . .” Id. Thomas Olson is the founding partner of Olson Construction Law. Tom’s commitment is to provide guidance on how to resolve issues on the jobsite, not in the courtroom. Tom has worked on highway heavy projects throughout much of the United States for more than thirty years. A prolific speaker and writer as well as attorney, his expertise is in concrete and asphalt paving, utility, earthwork and bridge construction, schedule analysis, material testing, and the technical and legal obligations of both engineers and contractors. Rielly Lund is a committed advocate for contractors, with the ability to quickly and accurately analyze a client’s issue within the parameters of each specific contract. Rielly works with contractors through all stages of construction, from bidding to acceptance, with the goal of minimizing risk and maximizing profits for contractors. With this in mind, Rielly enjoys discussing various contractual requirements with contractors before issues arise, so they are best able to meet any challenges head on. ABOUT THE AUTHORS ADVERTISING RATES STARTING AT $250! •  Discounted ACPA Member Rate • Advertise in Concrete Pavement Progress! P ublished quarterly, Concrete Pavement Progress disseminates industry news, best practices, and networking events nationally to all members of the American Concrete Pavement Association (ACPA). The ACPA is the world’s largest trade association that exclusively represents the interests of those involved with the design, construction, and preservation of concrete pavements. ISSUE Quarter 4 ‘20 DEADLINE October 14 Relieving [municipal owners] of the responsibility of consequences of defects in plans and specifications which contractors are bound to follow, we feel, gives private contractors pause to consider the ad- visability of bidding on such municipal projects. The public interest would likely suffer seriously from such a state of affairs in the long run. Id. Conclusion The next time an engineer demands repairs at your cost, ask exactly what specification you failed to follow which caused the failure. If he says it does not matter, you should immediately consult with an attorney to determine the legal and contractual apportionment of responsibility for failure in your jurisdiction.