Issue: Contractor’s obligation to comply with recommendations in a geotechnical report, and entitlement to rely on a change order issued in response to a request for clarification. Maines Paper & Food Service, Inc. v. The Pike Co., Inc. Appellate Division, Third Department, New York (2016), by Hugh Anderson

Summary: The contractor, The Pike Co., constructed a supermarket in Ithaca, New York. After completion the floor of the new building settled substantially. The owner, Maines, sued the contractor for breach of contract and breach of warranty.

The owner had provided a copy of the geotechnical report for the project to the contractor. The report stated that a slab-on-grade  concrete floor could be constructed, but recommended that the foundation slab not be connected to the pile caps. The project design did not show the slab being tied into the pile caps. The contractor submitted a request for clarification, essentially seeking confirmation that the pile caps and slabs should not be connected. As a result of the inquiry, the architect issued a drawing and related change order directing the contractor to add rebar reinforcement to tie the pile cap, slab, and certain columns to each other, to “provide additional lateral support for the pile caps.”

Based on uncontested evidence that the contractor had constructed the building in accord with the design, as modified by the change order, the contractor sought summary judgment dismissing the case. The owner opposed the dismissal, primarily based on the geotechnical report, which had advised against connecting the floor slab to the pile caps. The owner faulted the contractor for not pointing out the conflict between the recommendation in the report and the design, as modified.

The trial court granted the motion for summary judgment, and the case was appealed.

Decision: The appellate court agreed with the trial court that the motion for summary judgment should be granted, and the case against the contractor dismissed. The court concluded that the geotechnical report was not a contract document. The contract had allowed for specific parts of the report to be adopted as contractual requirements, but this procedure had not been used with respect to the floor and pile cap recommendation. The contract also required the contractor to conduct a careful review of the contract documents, but the court decided that this review was for the purpose of facilitating construction, not to provide professional services in analyzing the design. The court rejected the notion that based on its awareness of the geotechnical report recommendation, the contractor should have challenged the flawed directive to tie the slab and pile caps together, pointing out that a duty to report known conflicts with other contractual requirements existed, but the duty did not extend to the geotechnical report. Finally, the court concluded that the issuance of a definitive change order in response to the RFC eliminated any further issues about design intent or the floor slab issue.

Comment:  As  in  the  supermarket  case,  a  project  conducted  using  the  EJCDC documents would not make a geotechnical report a contract document. EJCDC does provide for the designation of portions of the geotechnical report as “Technical Data” that Contractor can rely on, somewhat parallel to the ability in the supermarket contract to designate portions of the report as contract documents. However, the recommendation about not connecting the slab and the pile caps should have been viewed not as potentially reliable site data, but rather as advice that the design professional should consider in preparing the design.

EJCDC makes Contractor responsible for reviewing the Contract Documents and noting conflicts and errors, but there is no requirement to challenge the sufficiency or wisdom of the design. It is worth considering whether the requirement in 3.03.A.2 that Contractor report any conflicts between the Contract Documents, on the one hand, and various external items such as applicable laws or reference standards, on the other,  should be expanded to include a duty to report conflicts  with other external documents such as the geotechnical reports prepared for the project.