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Liability for bid specification by DOT is limited.

The Court of Appeals of Tennessee considered the case of Chris-Hill Construction Company vs. State of Tennessee, on appeal from the Tennessee Claims Commission, Western Division at Memphis.

This claim arises from Chris-Hill Construction Company's (claimant) participation in bidding on a Tennessee Department of Transportation (TDOT) project for widening and improving the bridges and approaches over the Illinois Central Railroad, Tarent Branch, and Cane Creek on U.S. 51 in Shelby County (the project). The plans and specifications for this project were prepared by TDOT, which furnished them to interested bidders.

Bobby Garland of the TDOT was available to prospective bidders to answer questions about contract requirements. Chris-Hill contacted Garland to inquire if TDOT would enforce a note on the plans prohibiting the placement of a crane on the existing bridge in order to drive pilings. Garland informed Chris-Hill that the note would be enforced. Chris-Hill thereupon added the costs of constructing a berm upon which to locate a platform for the crane to its bid.

On February 13, 1991, two days before the bids were to be opened, Dement Construction Company contacted Garland and advised him that there were conflicting provisions in the plans and specifications regarding the requirement of seismic connections in the bearing pilings for the bridges. He requested that TDOT issue an addendum to the contract clarifying the matter. Garland said an addendum clarifying the requirements for seismic connections on the pilings would not be issued because it was too late to issue a clarification to all interested bidders.

On February 15, 1991, the bids were submitted and opened. The two lowest bidders were Dement at $1,463,378 and Chris-Hill at $1,525,529. The contract was awarded to Dement. During the bid review process, Garland determined that Dement would still be the lowest bidder after adding $10,200 (Dement's estimated price for the seismic connections in controversy) to its bid as submitted.

After the contract was awarded, Dement and the TDOT agreed that the contract was ambiguous about whether the use of seismic connections in the bearing pilings for the bridges was required. As provided for in the Standard Specifications for Road and Bridge Construction, Dement and TDOT executed a supplemental agreement paying Dement $150 per connection for the seismic connections, for a total of $10,200. This amount would have been paid to Chris-Hill had it been the successful bidder.

After construction began, Dement obtained permission from TDOT to place a crane on the existing bridge to drive some of the pilings for the project, which eliminated the need to construct a berm or base for that purpose.

Chris-Hill filed this claim alleging that it sustained damages as a result of the negligence of the TDOT, in allowing Dement to use the existing bridge as the platform from which to drive the required pilings in violation of the contract. Claimant alleged that if the "secret variation" had been disclosed, the expense incurred for the construction of a berm would not have been required and consequently it would have been the low bidder.

At the close of the claimant's case the commissioner granted the motion of TDOT to dismiss, holding that there was no evidence that TDOT granted Dement the variance before the bidding and thus no negligence.

In its discussion of the issues, the appellate court held that: "The state argues that a claim for deprivation of rights under the competitive bidding statutes requires Chris-Hill to prove that TDOT assured Dement that it would be allowed to make these deviations before it submitted its bid.

"The state argues that claimant presented no direct proof that TDOT provided Dement with information before bidding that gave it any unfair advantage in the bidding. Bobby Garland, the TDOT employee responsible for communicating with prospective bidders about the plans and specifications, testified that he did not discuss the issues of placing a crane on the existing bridge or the number of rows of sheet piling required with Dement before the submission of bids. He also testified that, although he did discuss with Dement the issue of whether seismic connections were required, he did not tell Dement before the bidding that it would be allowed a supplemental agreement to pay for seismic connections.

"The claimant relies on the fact that after the contract was awarded, Dement was allowed to deviate from the original plans and specifications, and argues that it is reasonable from that fact that Dement had been told prior to bidding that the deviations would be allowed.

"It is not controverted that in most TDOT highway construction projects the contractor is allowed to deviate from the original plans and specifications in some way, a practice known to Chris-Hill because it has been allowed such deviations on its TDOT projects. The appellate court agreed with the argument of the appellee that if the inference proposed by the claimant established a prima facie case, the unsuccessful bidder on most TDOT projects could make a claim that they had been deprived of rights under the competitive bidding statutes. Such an inference is equitable to a finding of corrupt state action, and cannot be properly considered as negligence in order to make a T.C.A. Section 98-307(N) case.

"Without the inference, it is not seriously controverted that there is no proof in the record that would support a finding that Dement Construction Company was given an unfair advantage in the bidding on this project or that, for any reason, Chris-Hill's bid was not 'fairly considered.' The commissioner's dismissal of Chris-Hill's claims under T.C.A. [section] 9-8-307 (a) (1) (N) is not contrary to the preponderance of the evidence.

"T.C.A. [section] 9-8-307(a) (1) (I) provides that the Claims Commission has jurisdiction to hear claims arising from: 'Negligence in planning and programming for, inspection of, design of, preparation of plans for, approval of plans for, and construction of, public roads, streets, highways, or bridges and similar structures, designated by the Department of Transportation as being on the State system of highways or the State system of interstate highways.'"

The claims commissioner found that jurisdiction only existed under this section for Chris-Hill's claim so far as it pertained to negligence in the preparation of the plans for the project to be bid. Chris-Hill claimed that TDOT had been negligent in the preparation of the plans because there was an ambiguity in the plans regarding the use of seismic connections on the concrete pilings. The commissioner dismissed that claim on the basis that the state has no duty to prospective bidders to prepare error-free plans.

Chris-Hill also argued that Section 307 (a) (1) (I) authorizes claims by unsuccessful bidders against the state, which allege negligence on the part of the TDOT in allowing successful bidders to deviate from the original plans and specifications. The appellate court did not agree.

The judgment of the Tennessee Claims Commission was affirmed by the Court of Appeals at the costs of the appellant.
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Title Annotation:Tennessee Department of Transportation
Publication:Public Works
Date:Jul 1, 1999
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