Construction contract documents frequently contain a contradiction. The project owner and design professional include a number of affirmative representations regarding the job site and the nature of the work. This information is intended not only to inform bidders, but also to encourage tight, competitive pricing, which will benefit the owner.

The contradiction arises when the documents go on to disclaim the accuracy of this information. It is provided for general background purposes only, it can’t be relied on, bidders are responsible for making their own independent assessment, etc.

On a recent federal project, a contract of this nature was construed against the government. The contractor was entitled to rely on an affirmative representation notwithstanding the broad exculpatory language that accompanied it. But this contractor was fortunate. The government had omitted the standard site investigation clause. The contractor was not obligated to conduct a pre-bid site inspection, which might have alerted the contractor to the inaccuracy of the government’s information.

Other cases this week involved prevailing wage rates that were increased after contract award and the use of a commercially unnecessary subcontractor to meet a participation goal. The contractor could not recover for the wage increase because it was already paying labor rates in excess of the increased amounts. And the commercially useless subcontractor did not count.