from striking all references to site visits and investigation, or at
least limiting its obligations to an above ground inspection and
made it clear that it was detrimentally relying on the County’s
water flow representations.
The D2 case vividly illustrates that what is missing from your
contract is just as important as what is written; you cannot always
rely on silence, and if you choose to do so, know the law in the
project’s jurisdiction (the two cases decided in this article may
have been decided differently in different states). Make affirmative
representations in your contracts that the contractor is liable for
all surface and subsurface conditions, and that the subcontractor
may rely upon all documents, reports and information provided to
it, while striking all language attempting to limit such documents
as “preliminary information only.”
Provide detailed proposals and incorporate them into your
contract. Limit your scope to exactly what you bid and include a
list of exclusions from your scope. D2 may have benefitted from
specifically excluding offsite hauling in its proposal rather than just
assuming that it would not be required. Ames could have expressly
conditioned its price on the water flow being 13 cfs or less and
indicating that all costs incurred for increased flow would be borne
by the County.
While never guaranteed (and not always agreed to by the higher
tier), these best practices can leave a subcontractor in a better contractual
position should a dispute arise. t
Susan M. White, Esq. is a senior associate with PDCA member
Benesch Law. Rick Kalson is a partner with Benesch Law and chairs
the PDCA’s Contracts and Risk Committee.
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