Case Study 3
We defended a County in New Jersey in Superior Court against a contractor who claimed, among other things, that the public works project cost the contractor an additional $630,000 to complete than anticipated due to errors in the County’s plans and specifications. The County learned that there were, in fact, errors in its plans and specifications, putting the County in a difficult position.
Upon a close and meticulous inspection of the facts, we noticed that a fair argument could be made that the errors in the County’s plans and specifications should have been noticed and identified as such by the contractor during the bidding phase. We believed that the errors were obvious or “patent” as that term is used under the law, and should not have caused the contractor to underestimate its bid to perform the work. On this basis, we crafted an uncommon defense to the contractor’s claim, which is known as the Patent Ambiguity Doctrine. The Patent Ambiguity Doctrine forces bidders to seek guidance from the public entity on any patent ambiguities in the bidding documents before submitting a bid, and any successful bidder who does not comply with the Doctrine will be barred from bringing strategic legal claims that it could have mitigated thereby. The Patent Ambiguity Doctrine exists to protect taxpayers when patent ambiguities in publicly-bid contract documents might otherwise give rise to a claim for damages by the contractor.
The argument succeeded and the County prevailed at both the trial level and on appeal to the Appellate Division.