What Counts as a Contract Document?

A document for informational purposes only may not support a differing site condition claim and definitions matter. A recent case decided by the Minnesota Court of Appeals offers a cautionary tale for contractors, engineers and municipalities alike. Ames Construction Inc. v. City of Moorhead, Case No. A25-0754, 2026 WL 861199 (March 30, 2026).

In 2002, the city of Moorhead, Minn. began planning a major infrastructure project: new railroad bridges and underpasses to improve traffic flow. In 2008, the city engaged a consulting engineer to prepare a geotechnical report. In 2018, after years on hold due to funding issues, the city finally let the project. Included in the bid materials was the geotechnical report, labeled as an “Attachment.”

The contractor and its subcontractor used this report to design temporary earth-retention systems. The temporary systems experienced soil movement and slope failures, so delays and extra costs accrued. The contractor blamed the city, arguing that the geotechnical report was inaccurate and that the city should be responsible for the unexpected soil conditions (i.e., differing site conditions).

The contractor sued the city, claiming breach of contract and implied warranties. The city countered that the report was not part of the official contract documents since it was an “attachment,” not a contract document. The lower court agreed with the city, and the contractor appealed.

The appeals court’s analysis hinged first on the contract’s definition of “contract documents.” The contract listed eight specific components as contract documents: advertisement for bids, instruction to bidders, form of proposal/bid packet, general specifications, special provisions, specifications, plans and drawings attached to the specifications and the payment and performance bonds.

The contract also provided that “all papers bound with or attached to the ‘bid packet’ are a necessary part thereof and must not be detached.”

The contractor argued the “bid packet” included the report because the report was attached to the bid packet and it was a “necessary part thereof.” The appeals court reasoned that although the report was an attachment to the bid packet, it was only an attachment and not defined as part of the bid packet.

Since the report was not defined as part of the bid packet, just an attachment, the report was not a contract document. The appeals court also reasoned that if every document provided to bidders was automatically a contract document, the contract’s careful definitions would be meaningless.

In this case, a mere attachment, although necessary, was not a contract document.

However, this reasoning alone is not enough. One of the elements of a differing site conditions claim is reasonable reliance by the claimant upon a representation by another party. The representation need not have been in a contract document.

Nevertheless, the geotech report in this case included disclaimers that it was for informational purposes only and not a guarantee or warranty of soil conditions or construction methods. Some courts have taken a broader view of what can be a representation. In so doing, such courts have seemingly ignored the limiting phrase “for informational purposes only.” Be aware of what rules may apply in your situation.

There are at least two takeaways from this case. First, not every document related to the bid includes a binding promise. Attachments, reports and background materials may inform about the work without creating obligations or warranties. Second, disclaimers may be enforceable, as they were here.

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].