Florida Construction Law

Under the Hendry decision mentioned in Part IV, the contractor was not able to recover an equitable adjustment to the contract price when the contractor discovered that the bridge pilings to be removed were wood, rather than concrete as anticipated.  The contractor was denied additional compensation despite the fact that the owner had in its possession plans from when the original pilings were installed showing that the piles were wood.  The contractor argued that the owner had misrepresented the true site conditions by failing to disclose all of the information to the bidders.  There are additional facts unique to the Hendry case that help explain why the court denied any recovery, but the case can still be cited for the proposition that a public owner in Florida does not have the duty to disclose superior knowledge regarding site conditions as long as the owner has not misrepresented the conditions to be encountered.   Trenton H. Cotney Board Certified in ...

Under Federal contracting law, when a government owner has possession of information concerning conditions that is pertinent to the cost or feasibility of a construction project, the government has a duty to disclose that information to the bidders.  In Florida, however, public owners do not necessarily have the duty to disclose all information regarding project conditions.  See Hendry Corp. v. Metropolitan Dade Co. , 648 So. 2d 140 (Fla. 3rd DCA 1994). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

Many owners do attempt to place some of the risk of unforeseen conditions on the contractor by including a provision in the bid documents stating that the bidder has investigated the site and is satisfied that the bidder has identified all conditions that may affect the performance of the work.  A thorough discussion of the efficacy of such clauses is beyond the scope of this post, but suffice it to say that courts recognize that all conditions can not be identified prior to the bid.  The duty of a bidder to conduct a site inspection generally does not obligate the contractor to discover hidden conditions or those that would not be discovered via a reasonable investigation which is appropriate to the time given. Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com

A contract that places the risk of differing site conditions on the contractor can still be profitable, but all of the bidders should be aware of the risks associated with the project.  If a bidder is concerned that the owner intends to place the risk of unforeseen conditions on the contractor, then the issue should be raised with the owner for clarification prior to the bid, e.g. at the pre-bid conference.  If the bid documents do not contain a differing site conditions clause, and/or changes clause, the owner should be asked whether the omission was intentional.  In this manner, even if the absence of the clauses was intentional, at least all of the bidders will be alerted to the increased risk associated with the contract, and all will be on equal footing.  It would be patently unfair for an owner to intentionally take advantage of the bid process by encouraging a bidder to submit a low price under the mistaken belief that the contract will allow an equitable ad...

Most, but not all , construction contracts contain clauses commonly refereed to as a “Differing Site Conditions Clause” and/or a “Changed Conditions Clause” that will allow the contractor to obtain additional compensation and time if a differing site condition is encountered.  Be aware, however, that there are public contracts in use in Florida that on their face do not allow for an equitable adjustment when a differing site condition is encountered.  If the contract documents do not contain the typical clauses mentioned above, then the contractor’s ability to recover additional time and money may be in jeopardy (and ultimately determined by the creativity of the contractor and its lawyer). Trenton H. Cotney Board Certified in Construction Law Trent Cotney, P.A. 1207 N Franklin St, Ste 222 Tampa, FL 33602 (813) 579-3278 www.trentcotney.com