1. The state decided to pave a portion of an interstate route. It furnished all prospective...

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1. The state decided to pave a portion of an interstate route. It furnished all prospective bidders with a bound set of documents. The documents were to be used as a basis for the bids. Sheet 2B showed the location and boundaries of two borrow pits labeled "prospect 1" and "prospect 2." The sheet described the contents as "limestone ledge rock" and reported tests run on the materials in the pits to determine whether they met the contract specifications. Another documents, sheet 44, described the prospects in detail and included the statement that each had been used previously for base and surface course on interstate projects. Although bidders could request permission to use other sources, these two prospects were the only economically feasible sources of paving materials in the general area of the project. All of those who bid on the project specified these prospects as their proposed source. The state standard specifications for road and bridge construction require bidders to visit the prospective materials site and visually inspect it. Two employees of C, the ultimately successful bidder, visited the pits. They concluded that the materials were consistent with the test data and would be suitable. C submitted the low bid and was awarded the contract. After it crushed some materials from prospect 2 and laid some of the asphalt, inspection revealed that the asphalt did not meet contract specifications because of the poor quality of the crushed rock. C adjusted the crushing process and added blend sand, but to no avail. Some four months after starting work, C shut down the operation, insisting on changes in the contract, which the state would not make. C's claim was based on misrepresentation by the state. However, the state contended that sheet 2B was not part of the plans and specifications, as it did not fall within the technical definition of the word plans set forth in the state's standard specifications. C contended that sheet 2B as a practical matter was part of the plans and specifications. Sheet 2B had been furnished to the bidders to provide foundation materials for the bid and was something on which all bidders were entitled to rely. It must be scrutinized for accuracy. C also contended that the information on sheets 2B and 44 was taken from tests conducted nine years before its bid and that all the tested materials had been removed from the sites long ago. At the time C made its bid, materials of a similar quality were found in the prospects, only under a substantial layer of overburden. In addition, C contended that the state had made more recent tests showing that the materials might be marginal, but the tests were not listed in sheet 2B. C also established that the state knew but did not disclose that after the date of earlier tests, a contractor had experienced difficulty in using prospect 2 and had recommended that the prospect not be relied on in the future. The state claimed that two of C's employees conducted a physical inspection of the prospect that included photographing all exposed cuts, feeling rock samples for texture, and performing scratch tests. It claimed that the employees believed that this inspection confirmed the accuracy of the information furnished and chose to rely on it rather than conduct additional laboratory work. The state also contended that a reasonably prudent contractor would have gained sufficient information from a properly conducted site visit, along with lab tests, to anticipate the need to either remove some of the overburden or somehow handle and dispose of it during the crushing operation to avoid contaminating the asphalt. How would you resolve this dispute? 2. C was awarded a contract to do construction work on the renovation of a fish hatchery for a state conservation agency. The project included reworking existing ponds, building a concrete drain and harvest kettle structures, and installing new fill and drain lines. C attended neither of the two prebid conference that were held. At those conferences, subsurface water conditions were discussed. C made no attempt to investigate the subsurface conditions as required by the contract because he felt he could rely on the soil borings furnished by the state with the plans and specifications, and these soil borings did not indicate wet site conditions. C sent his son to inspect the site six days after the prebid conference. The inspection consisted merely of driving through the location in the company of the hatchery manager. Other bidders testified they were able to discover wet soil condition by looking at the site or observing water in the bottom of existing lagoon cells. C began work, complained about the wet soil conditions, and refused to continue further performance. C made a claim, stating that he state had misrepresented the moisture content and had failed to disclose the wet soil conditions. He also asserted that the state had failed to disclose the underground aquifer of which it knew. Finally, the soil boring showed no evidence of moisture, and C contended that it was customary to show moisture content by borings. The contract required that C remove all surface water and groundwater; that he visit the site and fully inform himself of all existing conditions, including physical characteristics; and that he investigate the subsurface conditions and determine for his information the character and proportionate quantity of soils, rocks, and other subsurface materials that may be encountered. C was also to inform himself by independent research of difficulties to be encountered and judge for himself factors affecting the cost of doing the work or time needed. The contract concluded with a provision stating that the owner assumed no responsibility for physical characteristics at the site, and C agreed he would make no claim for additional compensation or time "because of his failure to fully acquaint himself with all conditions relating to work." How would you resolve C's claim for additional compensation and lost profits? 1. The state decided to pave a portion of an interstate route. It furnished all prospective bidders with a bound set of documents. The documents were to be used as a basis for the bids. Sheet 2B showed the location and boundaries of two borrow pits labeled "prospect 1" and "prospect 2." The sheet described the contents as "limestone ledge rock" and reported tests run on the materials in the pits to determine whether they met the contract specifications. Another documents, sheet 44, described the prospects in detail and included the statement that each had been used previously for base and surface course on interstate projects. Although bidders could request permission to use other sources, these two prospects were the only economically feasible sources of paving materials in the general area of the project. All of those who bid on the project specified these prospects as their proposed source. The state standard specifications for road and bridge construction require bidders to visit the prospective materials site and visually inspect it. Two employees of C, the ultimately successful bidder, visited the pits. They concluded that the materials were consistent with the test data and would be suitable. C submitted the low bid and was awarded the contract. After it crushed some materials from prospect 2 and laid some of the asphalt, inspection revealed that the asphalt did not meet contract specifications because of the poor quality of the crushed rock. C adjusted the crushing process and added blend sand, but to no avail. Some four months after starting work, C shut down the operation, insisting on changes in the contract, which the state would not make. C's claim was based on misrepresentation by the state. However, the state contended that sheet 2B was not part of the plans and specifications, as it did not fall within the technical definition of the word plans set forth in the state's standard specifications. C contended that sheet 2B as a practical matter was part of the plans and specifications. Sheet 2B had been furnished to the bidders to provide foundation materials for the bid and was something on which all bidders were entitled to rely. It must be scrutinized for accuracy. C also contended that the information on sheets 2B and 44 was taken from tests conducted nine years before its bid and that all the tested materials had been removed from the sites long ago. At the time C made its bid, materials of a similar quality were found in the prospects, only under a substantial layer of overburden. In addition, C contended that the state had made more recent tests showing that the materials might be marginal, but the tests were not listed in sheet 2B. C also established that the state knew but did not disclose that after the date of earlier tests, a contractor had experienced difficulty in using prospect 2 and had recommended that the prospect not be relied on in the future. The state claimed that two of C's employees conducted a physical inspection of the prospect that included photographing all exposed cuts, feeling rock samples for texture, and performing scratch tests. It claimed that the employees believed that this inspection confirmed the accuracy of the information furnished and chose to rely on it rather than conduct additional laboratory work. The state also contended that a reasonably prudent contractor would have gained sufficient information from a properly conducted site visit, along with lab tests, to anticipate the need to either remove some of the overburden or somehow handle and dispose of it during the crushing operation to avoid contaminating the asphalt. How would you resolve this dispute? 2. C was awarded a contract to do construction work on the renovation of a fish hatchery for a state conservation agency. The project included reworking existing ponds, building a concrete drain and harvest kettle structures, and installing new fill and drain lines. C attended neither of the two prebid conference that were held. At those conferences, subsurface water conditions were discussed. C made no attempt to investigate the subsurface conditions as required by the contract because he felt he could rely on the soil borings furnished by the state with the plans and specifications, and these soil borings did not indicate wet site conditions. C sent his son to inspect the site six days after the prebid conference. The inspection consisted merely of driving through the location in the company of the hatchery manager. Other bidders testified they were able to discover wet soil condition by looking at the site or observing water in the bottom of existing lagoon cells. C began work, complained about the wet soil conditions, and refused to continue further performance. C made a claim, stating that he state had misrepresented the moisture content and had failed to disclose the wet soil conditions. He also asserted that the state had failed to disclose the underground aquifer of which it knew. Finally, the soil boring showed no evidence of moisture, and C contended that it was customary to show moisture content by borings. The contract required that C remove all surface water and groundwater; that he visit the site and fully inform himself of all existing conditions, including physical characteristics; and that he investigate the subsurface conditions and determine for his information the character and proportionate quantity of soils, rocks, and other subsurface materials that may be encountered. C was also to inform himself by independent research of difficulties to be encountered and judge for himself factors affecting the cost of doing the work or time needed. The contract concluded with a provision stating that the owner assumed no responsibility for physical characteristics at the site, and C agreed he would make no claim for additional compensation or time "because of his failure to fully acquaint himself with all conditions relating to work." How would you resolve C's claim for additional compensation and lost profits?

Answer rating: 100% (QA)

When resolving the disagreement concerning the paving contract it is essential to take into account numerous factors a State Representation The state presented information about the prospects includin... View the full answer