When Approximate Means Assumed Risk

By Jon Straw

Sometimes when we are told what to do, the directions include when, where, by whom and how to do it. Other times, we are simply asked to get the job done and the how is up to us. Design specifications provide all the details (e.g., turn-by-turn navigation). Performance specifications dictate the destination, not the route.

In this story of bridge reconstruction, a department of transportation provided information that turned out to be inaccurate. The information was related to performance specifications, not design specifications, therefore, the contractor could not show a differing site condition. American Bridge Co. v. The Contract Dispute Resolution Board of City of New York, 2023 NY Slip Op 32852, NY Supreme Court, Docket No. 150226 (Aug. 18, 2023).

In November 2017, the New York City Department of Transportation (NYCDOT) solicited bids for reconstruction of the upper deck of the Queensboro Bridge, which connects the Upper East Side of Manhattan to Long Island City in Queens. The contract required protection of traffic and persons on the lower deck while work progressed on the upper deck. The contract did not prescribe the method of protection, so instead that decision was up to the contractor. 

Prospective bidders were allowed to tour the bridge, but traffic lanes were not closed, so measurements of actual conditions could not be taken before bid submission. A bid addendum provided some “approximate” dimensions. The same addendum provided that “[t]he awarded Contractor is to verify actual dimensions as needed.”  

Elsewhere in the bid package, it was stated that “[t]he dimensions and elevations shown on the plans have been obtained from the original drawings and shop drawings from the original structure and may vary from the actual dimensions and elevations as they exist on the field.”
  
Nearly five months passed from bid submission until contract award, during which time the contractor could have verified actual condition, which was not done. Some of the actual dimensions differed from the dimensions provided in the bid addendum. The different dimensions related to the temporary protection between the upper and lower decks.  

In its dispute against NYCDOT, the contractor argued that the contract requirement to verify actual dimensions did not replace its right to rely upon the pre-bid dimensions provided by NYCDOT.

The Contract Dispute Resolution Board of The City of New York decided that the contractor assumed the risk with knowledge that the pre-bid dimensions were “approximate.” The board also found persuasive that the work was to be performed on an existing structure, which is inherently less certain than new construction. Finally, the board noted that because the contractor was responsible for the means and methods upon which the dimensions relied, the contractor (perhaps) should have used different means and methods that were not so dependent upon such specific dimensions. The board determined the specifications for temporary protection required performance, not compliance with a prescribed design or method for such protection.

The board did not speculate on how the contractor could have verified actual conditions since traffic could not be stopped. Neither did the board discuss whether the contractor could have withdrawn its bid if, after bid submission, the contractor’s verification revealed sufficient differences in field conditions. (A bid withdrawal under such circumstances may not be allowed.  See Bidding Blunder in the April 2025 issue for the story of a bid mistake in West Virginia.)  

The New York Supreme Court (the lower-level trial court in New York State) quoted much of the board’s determinations and upheld the board’s denial of the contractor’s dispute. The court reasoned that, upon the DOT having provided all reasonably available information in good faith and without misrepresentation as part of the bid package, the risk shifted to the contractor to verify under the performance specifications for the temporary protection.

Failure may be on the director when the actor has carefully complied with detailed directions. Conversely, more autonomy or control should come alongside more responsibility.  

Jon Straw is a partner with Kraftson Caudle, PLC, a law firm in McLean, Va., specializing in heavy-highway and transportation construction. Straw can be contacted via email at [email protected].