As it unfortunately happens, certain engineering companies and municipal owners attempt to blunt the beneficial effects of the Differing Site Conditions Act with the inclusion of disclaimers and exculpatory clauses. The City of Ann Arbor is among those owners, when it recently bifurcated the definition of “contaminated soil” and attempted the shift the risk of encountering naturally occurring elevated levels of metals to the contractors who would be bidding its upcoming Barton Drive Resurfacing and Water Main Replacement Project.
The City is in the best situation to investigate the soil it owns during the design stage and determine whether elevated metals are naturally occurring or contamination. The City admits it has subsurface information from testing on numerous projects, but has failed to provide that information to the bidding Contractors.
Without providing a bidding Contractor with any data, the City requires the Contractor make management and cost decisions before work commences to determine the type of soil, where to dispose of the soil, and locate a landfill that will accept the disposal of that soil. The Contractor must then insert a contingency cost for that affected work, while attempting to be competitive with other Contractors submitting similar uninformed bids.
The Contractor has no control over whether the soils will contain elevated levels of metals, let alone whether they are naturally occurring or “contamination”. With no input or control over the decision, the Contractor is expected to flat out guess the quantity of soils that can and cannot be used as fill material, and the quantity of material that must be disposed at a landfill willing to take an unknown quantity of soils with elevated levels of arguably naturally occurring metals. This is the type of “blind guessing” bidding the DSC clause was developed to avoid.
MITA has taken aggressive action to protect its members and the integrity of the competitive bidding process. Please see the attached letter from our Construction Law partners, Butzel Long, addressed to the City of Ann Arbor’s Engineering Department, strongly suggesting it amend its Invitation to Bids.
We will keep you apprised of any response from the City.
If you have any questions, please contact Glenn Bukoski, VP of Engineering Services, at firstname.lastname@example.org or at 517-347-8336.