Do you clearly understand the contract requirements that affect the work prior to bid? Sometimes knowing what your obligations are should cause you not to bid. Unfortunately, some contractors just have to bid anyway. That was what happened in D.C. McClain, Inc. v. Arlington County, 452 S.E.2d 659 (Va. 1995).
McClain entered into a contract with Arlington County to construct a single-span, cast-in-place, post-tensioned bridge situated upon a landowner’s adjoining abutments. McClain was required to provide the means and methods necessary for post-tensioning the bridge. Prior to bid, McClain visited the site, reviewed the plans and specifications for construction and determined that mechanical jacks would be necessary for post-tensioning. However, there was not sufficient space between the bridge and the existing bridge abutments to locate the mechanical jacks. McClain also learned that the landowner would not grant an easement.
Without the easement, McClain was unable to post-tension the bridge. McClain’s subcontractor developed an alternative method for post-tensioning the bridge called “blockouts.” McClain submitted a shop drawing to the county. The county fixed a stamp stating that the review is for design conformance only and the contractor is responsible for confirming field dimensions, the fabrication processes or construction techniques and coordination of the work. The county also stated that its review does not relieve the contractor from complying with all contract document requirements. As it turned out, McClain was still unable to construct the bridge using the blockouts method.
McClain encountered other construction problems that caused work stoppages. The county executed a change order for additional compensation as “full compensation” for bridge completion, including minor revisions, by July 1, 1990. A few months later, McClain notified the county that it would not complete the construction unless the county provided the easement and additional compensation. The county refused and terminated the contract. McClain sued the county for wrongful termination and defective design.
The written word
Ultimately, the Supreme Court of Virginia decided the case on appeal. The court focused first on the standard principles of contract interpretation in resolving the issues. The court stated it “must enforce the contract between McClain and the county as written and the contract becomes the law of the case unless the contract is repugnant to some rule of law or public policy.”
In deciding against McClain’s defective design claim and its claim that it was the county’s contract obligation to obtain the easement, the court simply looked at the contract language. The court found the language clearly put the obligation to obtain necessary easements on the contractor.
The court also decided against McClain’s claim that it should recover delay damages associated with post-tensioning because the county approved the shop drawings. The court again looked to the contract language and decided McClain was obligated to build the bridge according to the contract documents. The contract stated in relevant part: “Approval shall not be construed as permitting any departure from contract requirements . . . nor as relieving the Contractor of the responsibility for any error in details, dimensions or otherwise that may exist.” The court declared that McClain remained responsible for any errors that might exist in the shop drawings.
The court also held that the county was justified in terminating the contract with McClain because it failed to construct the bridge in a diligent and timely manner as required by the contract.