DESPITE PRE-BID WALK-THROUGH, CONTRACTOR RECOVERS ADDITIONAL COSTS FOR DIFFERING SITE CONDITIONS WHERE DRAWINGS ARE INACCURATE AND MISLEADING
A member of this firm recently obtained an award after trial of $833,496 plus interest in favor of an electrical contractor against Con Edison for the additional costs incurred in the performance of two contracts concerning Con Edison's Waterside plant, located between 38th and 40th Streets in Manhattan.
Here, the plaintiff contractor properly relied on the contract documents and drawings in preparing its bid, rather than a brief pre-bid site visit conducted by Con Edison. Plaintiff was awarded the contract and upon discovery of all the inaccuracies and misrepresentations made by Con Edison in the specifications and drawings, plaintiff commenced an action for the additional costs. Con Edison argued that a contractor must accept all existing field conditions, as the contractor participated in a pre-bid walk through of the plant. With respect to the drawings, Con Edison's position was that they were merely "diagrammatic" or "schematic" and that the plaintiff should have observed the field conditions upon its visit.
In rejecting the defendant's arguments, the New York State court held that "[i]t is clear that on [the walk through visit] the contractor could not and was not expected to visualize all of the detailed field conditions that affected the conduit routings". In addition, plaintiff had a right to rely on the drawings provided by the defendant when making its bid due to a contract provision which required approval for any deviations from the specifications and drawings.
Therefore, the court held that the extra costs plaintiff incurred as a result of the necessary alterations made to the drawings regarding the conduit work and cables should be borne by the defendant, Con Edison. Plaintiff's award of $833,496 included the following costs: additional conduit installation and overhead, cable-pulling costs, extended duration costs, acceleration and loss of productivity costs, change order work, lost time after a steam explosion, unit price work, overhead and profit for overtime work. The loss of productivity damages resulted from the extra work shifts, which included the "loss of productivity associated with the inefficiencies with the change of shift, and a loss of productivity arising out of the extra hours that men are required to work".
