OVERCOMING DISCLAIMERS OF MISINFORMATION IN THE CONTRACT

Contractors who encounter differing site conditions are frequently confronted with arguments by the state that a site visitation clause in the standard specifications shields the state from liability for misinformation in the contract documents that causes unforeseen additional expenses. Since contractors rarely include contingencies in their bids to cover unforeseen expenses, this column addresses points contractors can advance to overcome such disclaimers. The South Dakota Supreme Court recently revisited this issue in Morris, Inc. v. South Dakota Department of Transportation (DOT), 598 N.W.2d 520 (1999). The court reversed a lower court's summary judgment for the DOT and remanded the case for trial. Noting that a general disclaimer should not be given effect when the state makes material misrepresentations, the court held it was a fact question for trial whether DOT gave rise to an implied warranty of accuracy by failing to act in good faith when it incorporated stale data into the bid package. Citing precedents, the court said that when the state makes affirmative representations that it permits the bidder to rely on, responsibility for the accuracy of this bid information should rest on the state, which is best positioned to determine if it is misleading.

• Availability:
  • Find a library where document is available. Order URL: http://worldcat.org/oclc/19451392
• Corporate Authors:

  American Road & Transportation Builders Association

  ARTBA Building, 1219 28th Street, NW
  Washington, DC  United States  20007-3389
• Authors:
  • Schoenfeld, S
• Publication Date: 2000-2

Language

• English

Media Info

• Pagination: p. 21
• Serial:
  • Transportation Builder
  • Volume: 12
  • Issue Number: 2
  • Publisher: American Road & Transportation Builders Association
  • ISSN: 1043-4054

Subject/Index Terms

• TRT Terms: Appeals; Contract administration; Contractors; Contracts; Court decisions; Government liability; Legal responsibility; Liability; State departments of transportation
• Uncontrolled Terms: Change orders; Disclaimers; Site conditions
• Geographic Terms: South Dakota
• Subject Areas: Administration and Management; Highways; Law; I10: Economics and Administration;

Filing Info

• Accession Number: 00797215
• Record Type: Publication
• Files: TRIS
• Created Date: Aug 7 2000 12:00AM