On appeal from Superior Court, Law Division, Hunterdon County.
Lora, Antell and Pressler. The opinion of the court was delivered by Antell, J.A.D.
[173 NJSuper Page 487] After allowing a credit of $26,827.80 for defects and $1,700 liquidated damages for delayed performance, the Law Division entered judgment in the amount of $118,788.28 in favor of plaintiff and against defendant. The suit arose from a contract for the installation of longitudinal drains along a section of Route 78, and the judgment reflects losses incurred because of inaccuracies in the advertised plans and specifications upon which plaintiff relied in preparing its bid.
The project called for the construction of a drain in the roadway's outer shoulder for a distance of 60,000 linear feet. Plaintiff contends that it based its bid on a cross-sectional drawing of the shoulder accompanying the plans showing an existing layer of asphalt two inches deep. The trial judge found that the asphalt layer was "substantially thicker" than shown in the drawing and that, at least for the first half of the job, was of an average thickness of 3 1/2 inches. It was also found that the drawing constituted an express representation upon which prospective bidders could rely in planning their construction methods and anticipating the cost of equipment necessary to prepare their bids.
The State notes that the drawing does not purport to show the shoulder of the roadway "as built", explains that it was probably prepared before the actual construction of the highway, and was included in the specifications not as a statement of actual subsurface conditions, but only as an aid to prospective bidders in visualizing the various layers of subsurface material. Its position is fortified by those provisions of the specifications which oblige the contractor to ascertain all physical characteristics "above, on and below the surface of the ground."
1.2.11. Familiarity with Work.
It is the obligation of the Bidder to ascertain for himself all the facts concerning conditions to be found at the location of the Project including all physical characteristics above, on and below the surface of the ground, to fully examine the Plans and read the Specifications, to consider fully these and all other matters which can in any way affect the work under the Contract and to make the necessary investigations relating thereto, and he agrees to this obligation in the signing of the Contract. The State assumes no responsibility whatsoever with respect to ascertaining for the Contractor such facts concerning physical characteristics at the site of the Project. The Contractor agrees that he will make no claim for additional payment or extension of time for completion of the work or any other concession because of any misinterpretation or misunderstanding
of the Contract, on his part, or of any failure to fully acquaint himself with all conditions relating to the work.
1.2.12. Subsurface Conditions.
It is the obligation of the Bidder to make his own investigations of subsurface conditions prior to submitting his Proposal. Borings, test excavations and other subsurface investigations, if any, made by the Engineer prior to the construction of the Project, the records of which may be available to bidders, are made for use as a guide for design. Said borings, test excavations and other subsurface investigations are not warranted to show the actual subsurface conditions. The Contractor agrees that he will make no claims against the State, if in carrying out the Project he ...