Five years ago, the Massachusetts Appeals Court made clear that contractors and subcontractors had a legal right to recover monetary damages against a project architect who made negligent misrepresentations in plans and specifications, and who engaged in unfair and deceptive conduct in carrying out its duties as project architect (see Construction Law Comments - Fall 1998). The Court so ruled even though the architect's contract is typically with the owner, not the contractor. The Appeals Court recognized that contractors must rely on bid documents prepared by project architects in order to price and build the project, and that basic fairness required the project architects to assume a duty of care and good faith to those contractors.
The Appeals Court's decision, however, is not the end of this story. To avoid its effect, some architects have used their role in drafting specifications to attempt to create their own immunity from contractor claims. They have begun inserting into supplementary general conditions a paragraph called "Covenant Not to Sue" which purports to be an agreement by the contractor not to sue, or otherwise seek damages against the architect. Typically, this paragraph has been grafted onto the indemnification provision appearing in the contract general conditions.
These covenants not to sue are legally suspect. The idea that an architect may create legal immunity for itself by slipping self-help language into a contract to which it is not even a party seems unfair, bordering on unconscionable. No appellate court has yet ruled on their legality. However, at least one Superior Court judge has ruled a covenant not to sue an architect on a public project was not enforceable.
Where a covenant not to sue the architect appears in bid documents or a contract involving private work, the easy solution for the contractor is simply to strike it out. On a public project subject to the competitive bidding statute, where no negotiation is allowed, it is not possible for a contractor to delete a contract provision. Nevertheless, the chances of a Court finding such a covenant not to sue illegal and unenforceable are greater on public work simply because there is no opportunity for negotiation. In that circumstance, Courts construe all doubtful language against the party who drafted the contract and may refuse enforcement where they determine the provision is unconscionable, or is inconsistent with public policy or the purpose of the public bid statute.
The courts have repeatedly ruled that a central purpose of the public bidding statutes is to encourage more contractors to bid public work to gain the lowest price for the public. Covenants not to sue the project architect are incompatible with that statutory purpose because they discourage rather than encourage bidders. They expose contractors and subcontractors to the added risk of working under an arbitrary or incompetent architect against whom contractors have no recourse. Any bidder on a public project who finds a covenant not to sue the architect in bid documents should demand the Awarding Authority remove it.
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