Illinois Appellate Court Relies On "Instructions To Bidders" Examination Of Site And Subsurface Exploration Data Provisions In Finding No Liability On Behalf Of A Design Professional
January, 2004
In a case defended by CM partner Jim Hoey and Paula Carstensen, the Illinois Appellate Court affirmed the dismissal of a design professional against claims of fraudulent and negligent misrepresentation. Bright Constr. v. Christopher Burke, No.2-03-0426.
The case involved the design and construction of a reservoir. The plaintiff contractor was engaged by the county to perform excavation work. The defendant civil engineering firm was hired by the county to provide design services and to prepare the contract bidding documents.
The contractor’s complaint alleged causes of action for fraudulent and negligent misrepresentation, centering on the existence of a previous geotechnical and ground water investigation report for the county pertaining to the project. The contractor alleged that the contract bidding documents, upon which it relied in making its bid, did not disclose the information contained in the earlier geotechnical report concerning subsurface conditions of the project, which allegedly resulted in cost overruns to the contractor.
The Illinois Appellate Court, Second District affirmed the trial court’s dismissal of the action finding, among other reasons, that the contractor would never be able to prove the necessary element of justifiable reliance on the alleged misrepresentations. The court reasoned that the county furnished the contractor with a contract bidding document entitled “Instructions to Bidders” in which the contractor was informed that it was to make its own investigation of subsurface conditions at the project and which included the disclaimer that the county and the design professional bore no responsibility with respect to the sufficiency or accuracy of their preliminary investigations of subsurface conditions.
The pertinent provisions in the “Instructions to Bidders”, which was part of the contract bidding documents prepared by the design professional, advised the bidder:
1. Examination of Site
A bidder by submitting a bid represents that it has visited the site and become familiar with all the conditions under which the work is to be performed. No extra compensation will be allowed by reason of any matters or things concerning the project which the bidder did not inform itself [sic] prior to bidding.
* * *
2. Subsurface Exploration Data
Limited investigation of subsurface conditions at the proposed site of work has been made for the purpose of design. The [County] [and the Design Professional] assumes no responsibility whatever with respect to the sufficiency or accuracy of these preliminary investigations, nor their interpretation, and there is no guarantee, either expressed or implied that conditions indicated are representative of those existing throughout the work or any part of it, or that unforeseen developments may occur.
Investigation of subsurface conditions at the site is the responsibility of the bidder.
The Illinois Appellate Court reasoned that the “Instructions to Bidders” put the contractor on notice (1) that by submitting its bid, it represented that it had visited the site and become familiar with all the conditions under which the work would be performed; and (2) that it was instructed to undertake its own independent investigation of the subsurface conditions of the project. The contractor thus assumed the risk of encountering unfavorable subsurface soil conditions.
Please contact Jim at jhoey@clausen.com or Paula at pcarstensen@clausen.com if you would like to discuss this case further.
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