Subcontractors: make sure you review, and I mean review, the contract documents (drawings and specifications) and estimate properly. Seek clarification or submit an RFI if there is a conflict in the drawings and specifications. If you do not, you could be responsible for a drawing error that was not your fault no matter how unfair this sounds. This is illustrated in the recent opinion in U.S. f/u/b/o Asphalt Contractors & Site Work, Inc. v. Kar Contracting, LLC, 2015 WL 8074073 (S.D. W.V. 2015).
In this dispute, a prime contractor for a federal project was soliciting subcontractor bids for paving work / asphalt resurfacing. The prime contractor provided a subcontractor a link to a website where the specifications and drawings could be downloaded. (Not uncommon that drawings and specifications are furnished through an FTP site or web-based platform.) One of the plan sheets the subcontractor relied on was later determined—after the subcontract was awarded to the subcontractor—not to be drawn to scale. This error conflicted with another plan sheet. This error was neither the prime contractor’s nor the subcontractor’s fault. Unfortunately, this error resulted in the subcontractor underbidding the amount of asphalt required for the job. The subcontractor sought to recoup its additional costs associated with the drawing error from the prime contractor (and its Miller Act payment bond surety).
Not surprisingly, the subcontractor’s argument was that it should not be held liable for the drawing error that resulted in it underestimating the amount of asphalt required for the pavement work. The court found this argument unpersuasive. There was a conflict in the drawings relating to the amount of asphalt required. If the subcontractor relied on the drawing drawn to scale and requiring more asphalt, it would not have underestimated its costs. The subcontractor had the opportunity and obligation to review the plans and the prime contractor did not prevent the subcontractor from seeking clarification regarding the conflict in the drawings. Further, the subcontractor offered no evidence that the prime contractor was awaare of the drawing error or in any way induced the subcontractor to underestimate the amount of asphalt required for the pavement work.
When subcontractors prepare bids and enter into subcontracts, they generally have access to the full plans and specifications. It is incumbent on subcontractors to review the plans and specifications to ensure they are capturing all of the specifications and plan sheets applicable to their scope. Otherwise, if they make a mistake, whether it be failing to account for a certain detail, plan sheet, specification section, or addressing a conflict on the front end, that mistake can fall back on them.
Please contact David Adelstein at firstname.lastname@example.org or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.