Ambiguous Specification Requirements - Who Pays?

Too often disputes arise on construction projects because plans and specifications are poorly expressed or are in conflict. The result is that someone is required to perform work that was not carried in the bid price. The dispute over who pays for that work generally turns on just how obvious the ambiguity was.

Provisions that may not appear to be a problem to a bidder when preparing his estimate, sometimes become the center of a contract interpretation dispute during construction. This can happen when (1) A contractor (or subcontractor) simply sees no ambiguity or discrepancy in the plans and specifications and bases his bid on what he believes to be a clear requirement; (2) A contractor (or subcontractor) notices an ambiguity or discrepancy, but interprets the provision as not affecting his work; or (3) a contractor (or subcontractor) recognizes the ambiguity or discrepancy may affect his work but rather than raising any question pre-bid interprets the requirement in his favor and runs the risk of an adverse architects decision in the event he gets the contract.

The temptation to interpret an ambiguous requirement as someone else's responsibility is strong, particularly where the prospect of getting the contract is so dependent on having the lowest price. To include, in the bid price, work that may not be the bidder's responsibility places the bidder at a competitive disadvantage with another bidder who leaves that work out of his bid.

Clearly, where a bidder recognizes an ambiguity which has the potential for conflicting interpretations, the safer practice is to make a written request to the architect for clarification in advance of the bid date. Clarifications by the architect in the form of an addendum places all bidders back on the same competitive footing. And if the architect fails to issue an addendum despite a request for clarification, the bidder has a much stronger basis to interpret the provision in his favor.

For those plans and specifications disputes which are not resolved short of litigation, the court will look at the degree of obviousness of the ambiguity or discrepancy. If the judge concludes the provision is subtle and might reasonably be missed by a conscientious bidder, the burden of error falls on the drafter or issuer of the specifications. That means the work will be regarded as extra work entitling the contractor or subcontractor to additional compensation beyond the contract price. As between an owner and general contractor, the burden falls on the owner since he is the one who retains the designer to prepare the plans and specifications for bidding. As between a general contractor and subcontractor, the burden falls on the general contractor, since he is assumed to be the one who issues the contract documents to the subcontractor for bidding.

If on the other hand, the judge concludes the ambiguity should have been apparent to the bidder, then a failure to seek clarification before submitting the bid is usually fatal to any claim for extra compensation. In that event it is the party performing the work who pays for the mistake.

This newsletter is intended to provide general information of interest to the construction industry. It is not intended to provide specific legal advice or to address fact specific issues. For that you should consult your legal counsel. Corwin & Corwin LLP assumes no liability in connection with the use of this newsletter. The Supreme Judicial Court may consider this material advertising.