Q: We recently received a number of bids on a federal project. The project solicitation requires that federal law apply. An issue has been raised as to whether the language in the project solicitation, in the invitation, forbids control over an issue in which one of the bidders, now protesting, claims a federal statute should be controlling and that language in the invitation for bid should be set aside in favor of a controlling federal statute. Which controls, the language in the invitation for bid or a federal statute?

A: In most projects, the request for proposal does not necessarily have the last word as to whether a particular bid issue is controlled by way of the request for proposal or statute. If a project solicitation is subject to a federal statute, then the words of the statute are the ones that count. However, this may not end the analysis since the bid must meet the actual requirements of the statute. Therefore, if the protest grounds and the position of the protesting contractor meet neither the statute nor the RFP language, the protest may be unsuccessful. A thorough analysis is required as to whether there is a conflict between the RFP language and the statute and whether the statute and the RFP language meet the intent of the law in the context of the bid proposed.

Q: We served as construction manager on a project wherein the contractor stopped work during excavation for validation on the grounds that it suspected it was going to encounter differing site conditions and requested a change order. We denied the request since there is no proof the actual conditions were encountered, but we do recognize they may exist. Does the contractor actually have to encounter differing site conditions to make a claim?

A: The suspicion that site conditions might be encountered in the subsurface is not enough to prove differing site conditions. The contractor actually has to encounter something different. The contractor has to encounter unknown conditions that differ from those indicated in the contract or those normally encountered in such work. Here, the question presented states only that the contractor "might" find something it did not expect as it was excavating and therefore requested additional compensation. This suspicion is not enough to justify a claim.

Michael J. Baker, Esq., is a partner in the Cerritos, Calif.-based law firm of Atkinson, Andelson, Loya, Ruud & Romo. He is an expert in design and construction contracts, mediation, and litigation. Please send him your legal questions via e-mail at mbaker@aalrr.com.

The answers to the questions provided herein, although intended to be accurate, authoritative, and informational, may or may not accurately reflect the law in your jurisdiction or where you do business. In providing answers to these questions, it should be recognized that neither the author nor the publisher is engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional licensed in your jurisdiction should be sought. The information provided herein is for informational and hypothetical purposes only.