Contractors preparing to bid on contracts are frequently forced to rely on the site condition information provided by project owners. There is neither time nor money for an independent evaluation of conditions that cannot be readily observed during a pre-bid site inspection. Bidders are entitled to reasonably rely on affirmative representations in the contract documents. But, when is a representation sufficiently affirmative and when is reliance reasonable?

In a recent case, a project owner provided soil test boring logs indicating the presence of hydrostatic groundwater. But, the contract prohibited site condition claims based on “interpretations of or conclusions drawn” from objective data. A
bidder calculated anticipated groundwater flow rates using a well-recognized formula. When the successful bidder later asserted a differing site condition claim, there were problems with both an affirmative representation by the owner and reasonable reliance by the bidder.

Other cases this week involved a remote supplier’s ability to recover against a public works payment bond and a bid protester’s ability to recover attorney fees despite the lack of a decision on the merits of the protest. The supplier could not recover payment against the bond. The protester recovered attorney fees because the public project owner deliberately mooted the protest.