Joseph F. Trionfo & Sons, Inc. v. BD. OF EDUC. OF HARFORD CTY.

¹⁰⁴ Thompson, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Harford County (Higinbothom, J.) granting a motion for summary judgment. Joseph F. Trionfo & Sons, Inc., appellant, urges us to reverse the decision below on the grounds that there are genuine disputes of material facts, the resolution of which demand a trial, and that appellee, Board of Education of Harford County, was not entitled to a judgment as a matter of law. In December of 1973, appellee invited bids for the construction of the North Harford Middle School.

Various drawings, specifications and other documents relating to the project were made available to interested contractors for the purpose of computing their bids. Appellant, a general contractor, submitted the low bid of $6,695,200.00 and was awarded the contract. During the course of site clearing and excavation, appellant’s subcontractor encountered a substantial quantity of rocks in the subsurface. The subcontractor claimed, and recovered from appellant, extra compensation for the unanticipated difficulty in excavating this material from the site.

Appellant then brought this action against appellee claiming compensation for the additional expenses allegedly due to inaccurate and misleading representations made by appellee concerning the nature of the subsurface conditions on the site. The contract specifications contained the following provisions relative to excavation work and subsurface conditions: “BASIS OF CONTRACT Excavation work under this contract is unclassified, and includes (without limitation thereto) excavation and removal of all soil, shale, rock, boulders, existing foundations, fill, and every kind of subsurface condition encountered in contract area. No extra or additional compensation for excavation will be paid under this contract for work included in .Bid Proposal at time of bidding. Subsurface Soil Data: Data concerning subsurface ¹⁰⁵ materials or conditions which is based upon soundings, test pits, or test borings, has been obtained by Architect for his own use in designing project.

Its accuracy or completeness is not guaranteed by Owner or Architect and in no event is it to be considered as part of contract plans or specifications. Contractor must assume all responsibility in excavating for this project and shall not rely on subsurface information obtained from Architect, or indirectly from Owner. Bidders shall make their own investigation of existing subsurface conditions; neither Owner or Architect will be responsible in any way for additional compensation for excavation work performed under the Contract due to Contractor’s assumptions based on sub-soil data prepared solely for Architect’s use.” Test boring data was not provided with or among the specifications or other contract documents, but appellee did make the data available for review by bidding contractors upon written request. Such requests were required to be in the following form: “Please forward copies of test boring data sheets for the subject project.

The contracting firm herein named releases the Owner and Architect from any responsibility or obligation as to its accuracy or completeness or for any additional compensation for work performed under the contract due to assumptions based on use of such furnished information.” Appellant obtained the test boring data by making a request in the required form. Appellant’s essential contention is that it was entitled to rely on the subsurface soil data furnished by appellee, despite the specific release which appellant executed as a prerequisite to obtaining the information and despite the contract provisions excluding such information from the specifications and disclaiming any guarantee of its accuracy. Finding no Maryland authority specifically controlling this situation, ¹⁰⁶ appellant turns to cases in other jurisdictions which it contends represent a majority view that general exculpatory clauses disclaiming responsibility for the accuracy of subsurface soil data are of no effect when the positive representations made by the landowner are obviously intended to be used by bidding contractors for formulating their bids. A careful review of the cases cited by appellant reveals that the factual situations involved were different from that presented here, and that the principles there relied upon are not applicable to the instant case.

Appellant first cites Hollerbach v. United States, 233 U. S. 165 , 34 S. Ct. 553 , 58 L. Ed. 898 (1914), as the leading case on this subject. The factual situation in Hollerbach , however, is easily distinguishable from that present here. The case arose out of a contract for the repair of a dam. The specifications made a positive representation as to the nature of the material behind the dam.

In another portion of the contract the following exculpatory clause was found. “20. It is understood and agreed that the quantities given are approximate only, and that no claim shall be made against the United States on account of any excess or deficiency, absolute or relative, in the same. Bidders, or their authorized agents, are expected to examine the maps and drawings in this office, which are open to their inspection, to visit the locality of the work, and to make their own estimates of the facilities and difficulties attending the execution of the proposed contract, including local conditions, uncertainty or weather, and all other contingencies.” 233 U. S. at 167 . The Court refused to hold that this general exculpatory language was sufficient to overcome the specific and .unequivocal representation concerning the material behind the dam. “We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which ¹⁰⁷ the specifications furnished by the Government as a basis of the contract left in no doubt.

If the Government wished to leave the matter open to the independent investigation of the claimants it might easily have omitted the specification as to the character of the filling back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity.” 233 U. S. at 172 . (Emphasis added.) In the instant case the exculpatory and disclaimer clauses are specifically directed at the subsurface soil conditions. In addition, the nature of the release required to be executed before obtaining the test boring data in this case makes it clear that appellees did not expect the bidding contractors to rely on any of the information contained therein.

Under these circumstances we do not find Hollerbach applicable. Appellant next cites Robert E. McKee, Inc. v. City of Atlanta, 414 F. Supp. 957 (N.D. Ga. 1976). The Court in that case recognized that the owner does not become an insurer merely by providing certain information to bidders. There, the results of test borings were gratuitously provided to bidders along with the specifications and other contract documents.

The contract provided that the owner would not be responsible for the accuracy of the test results or for any conclusions drawn from them. It further provided that the test boring data was not to be considered a part of the contract. The court held that the contractor could recover for misrepresentation if two criteria were met. First, the bidder must not have been reasonably able to discover the true facts for himself.

The Court pointed out in this regard that the appropriateness of a site inspection by the bidder depends on the facts of each case and the central question in each case is whether the bidder placed justified reliance on data provided by the owner. Even if we were to apply this criterion in the present case its application would be of no avail to appellant.' It is quite clear from the contract documents and the release executed by appellant that the bidders were not ¹⁰⁸ justified in relying on the test boring data. Appellant contends in its brief that because the time span between the date when bidders could first obtain drawings, specifications and other documents until the bid opening date was only three weeks, they were precluded from obtaining independent test boring data. There is no indication in appellant’s affidavit in opposition to the motion for summary judgment that this was true.

Neither the affidavit nor anything else in the record indicates that independent test boring data could not have been obtained within that period. Assuming that three weeks was an insufficient time within which to make the necessary tests, the contract documents clearly prohibited reliance on any of the subsurface soil information obtained by the appellee for its own use. Here, unlike McKee, supra, no such information was gratuitously supplied to contract bidders but, on the contrary, it was made available to them only upon the execution of an express written agreement by the contractor to release the appellee from any responsibility for the accuracy or completeness of the information. To hold that appellant might have been justified in relying on the test boring data simply because it had insufficient time within which to conduct its own tests would require us to ignore not only all the language in the contract documents disallowing any such reliance but also the clear import of the release executed by the appellant.

Instead of ignoring the contract documents and the terms of the release, appellant, if it wished to submit a bid without conducting its own tests, could have adjusted its bid to cover the risk which any reasonable bidder would have known it was encountering. In Al Johnson Construction Co. v. Missouri Pacific Railroad Co., 426 F. Supp. 639 (E.D. Ark. 1976), also relied upon by appellant, there was proof sufficient to convince the trial judge that the owner did not really expect bidders to make their own subsurface tests and did expect them to rely on its test data. The contract in that case involved a “changed conditions” clause providing for an equitable adjustment in compensation where actual conditions were discovered to be different from those depicted in the specifications. The Court ¹⁰⁹ stated