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Volume 6 - Number 09 | March 3, 2008

EDITOR'S NOTES
Like contracts, bid proposals are subject to opinions and interpretations. In this week’s first case, a low bidder was deemed nonresponsive after the public owner found that the bidder did not submit all of the forms required in the bid documents. Instead, the bidder substituted the proffered corporate resolution form with its own standard form. Because state law and a precedent case determined that even "informalities" such as this could not be waived, the bidder’s protest was denied.

Differing document interpretations are also at the heart of the next two cases. By altering the contract’s standard arbitration clause, the parties opened themselves up for a legal dispute when the project ran into trouble. And, a subcontract that incorporated certain clauses from the prime contract created problems on a fixed-price contract when differing site conditions arose.

Finally, Dr. William Ibbs concludes this issue with a review of the statistics associated with cumulative impact—how change can impact a project—as well as how the elements and project players factor into that impact. His insights regarding change and labor productivity are particularly revealing, plus his own independent statistics lend support to the controversial Leonard study.


LOW BID RUINED BY BIDDER’S CORPORATE RESOLUTION FORM
A bid document non-maliciously exchanged for a similar form by a low bidder renders the bidder nonresponsive, rules a state appeals court.

MODIFICATIONS TO AIA DOCUMENTS MADE ARBITRATION PERMISSIVE
When parties modify a standard contract document to remove mandatory arbitration, neither party can compel arbitration later on when a dispute arises.

DIFFERING SITE CONDITIONS CLAUSE WAS INCORPORATED INTO SUBCONTRACT
A federal differing site conditions clause included in a fixed-price subcontract preempts the inherent risks associated with fixed-price contracts.

THE CUMULATIVE IMPACT OF CHANGE ON CONSTRUCTION LABOR PRODUCTIVITY
By William Ibbs, Ph.D.
Changes on construction projects are inevitable. How change impacts the project is the subject of multiple studies, discussed here by Dr. William Ibbs of U.C. Berkeley and The Ibbs Consulting Group. Dr. Ibbs own independent study of 170 projects supports findings of the controversial Leonard study.