Project owners frequently rely on their design consultants for a wide variety of services in addition to the preparation of drawings and specifications. When providing these administrative services, the design professional’s primary obligation is to its client, the project owner. And if the project owner is a public entity, the design professional is cloaked with a certain amount of protection when exercising its independent business judgment on behalf of the owner. But this does not mean the design professional has no obligation whatsoever to bidders or contractors.

In a recent Michigan case, a low bidder alleged that the project architect improperly disqualified the bidder as not responsible. The bidder alleged personal malice and intentional misrepresentation of the bidder’s past performance history. A trial court granted summary judgment in favor of the architect, saying it was simply an exercise of professional business judgment. But, an appeals court allowed the bidder to proceed with the suit based on evidence of intentional misconduct.

Other cases this week involved a nonfunctional aesthetic feature of work and an agency’s attempt to auction a contract after exposure of the low price. The aesthetic feature was ruled to be a material term of the contract, so failure to comply was a breach. And, the agency was permanently enjoined from resoliciting proposals after exposure of the successful offeror’s price.