Skip to content

Menu

LexBlog, Inc. logo
CommunitySub-MenuPublishersChannelsProductsSub-MenuBlog ProBlog PlusBlog PremierMicrositeSyndication PortalsAboutContactResourcesSubscribeSupport
Join
Search
Close

Pre-Bid Documents and Estimates Can’t Be Hidden Behind the Curtain in Disputed Delay Claims

By Matthew DeVries on March 18, 2021
Email this postTweet this postLike this postShare this post on LinkedIn

With the kids off for spring break this week, we nestled around the big screen for a family favorite. “The Great Oz has spoken! . . . Pay no attention to that man behind the curtain!” My littlest chuckled.

Just like the old man who couldn’t hide behind the curtain in The Wizard of Oz, contractors and subcontractors should be reminded that pre-bid documents, such as draft proposals and bid estimates, can’t be hidden behind the curtain of “trade secrets”.  This is especially true when there is a delay claim in dispute, according to a recent ruling by a trial court in New York County.

In WDF, Inc. v. City of New York,  No. 652478 (N.Y. Sup.) (Mar. 12, 2021), the contractor filed suit to recover damages from the City on numerous combined waste water treatment projects.  The contractor claimed that the City breached its contract by supplying incomplete and inaccurate contract documents, which allegedly caused delays and a two-year extension to the project completion.  The contractor’s $15.7 million delay claim included approximately $2.3 million for damages experienced by one of its subcontractors.

The dispute is currently in the discovery phase and the City filed a motion to compel the contractor’s internal pre-bid documents and bid estimates, as well as the subcontractor’s base documents. In the trial court’s order, Judge Borrok concluded that the contractor and subcontractor’s claims for unanticipated delay damages “affirmatively put in issue what it was they contemplated in formulating their bids.”  The court relied on an old 1979 case where another trial court rejected claims that pre-bid documents constituted undiscoverable trade secrets.

So what? The trial court’s decision is a good reminder for contractors and subcontractors to implement a document retention policy for maintaining its pre-bid documents and estimates.  Parties need to understand that these type of documents may be entirely relevant in the event of disputes, and the contractor will not be able to hide behind a curtain of “trade secrets” to keep the documents confidential.

Photo of Matthew DeVries Matthew DeVries

Matt is a construction & litigation attorney at Burr & Forman LLP and father of seven young kids.

Read more about Matthew DeVriesEmailMatthew's Linkedin ProfileMatthew's Twitter Profile
  • Posted in:
    Real Estate & Construction
  • Blog:
    Best Practices Construction Law
  • Organization:
    Matthew DeVries
  • Article: View Original Source

LexBlog, Inc. logo
Facebook LinkedIn Twitter RSS
Real Lawyers
99 Park Row
  • About LexBlog
  • Careers
  • Press
  • Contact LexBlog
  • Privacy Policy
  • Editorial Policy
  • Disclaimer
  • Terms of Service
  • RSS Terms of Service
  • Products
  • Blog Pro
  • Blog Plus
  • Blog Premier
  • Microsite
  • Syndication Portals
  • LexBlog Community
  • 1-800-913-0988
  • Submit a Request
  • Support Center
  • System Status
  • Resource Center

New to the Network

  • Pro Policyholder
  • The Way on FDA
  • Crypto Digest
  • Inside Cybersecurity & Privacy Law
  • La Oficina Legal Ayala Hernández
Copyright © 2022, LexBlog, Inc. All Rights Reserved.
Law blog design & platform by LexBlog LexBlog Logo