Midterm Flashcards
What are the three major categories of law that are applicable to construction?
Contract
Tort - civil wrong other than breach of contract where court will provide remedy for damages
-Intentional Torts (assault, fraud, conversion)
-Negligence (lack of due diligence or care)
-Strict Liability (liable without regard to fault)
Statutory/Regulatory
What are three implied contract obligations (obligations other than those spelled out by the agreement or contract)?
- Duty of good faith
- Duty to cooperate
- Warranty of plans & specifications (Spearin Doctrine) and results of performance
What are the three basic categories of torts?
Intentional torts
Negligent torts
Strict liability
Which party in the design-bid-build contracting method is displaced when using multi-prime contracting?
General contractor
When using design-build contracting, which party assumes the design and construction responsibilities, along with the resulting liabilities?
Design-builder
What is the contractual relationship between a public agency and a private entity that may be used to deliver a facility for the use of the general public?
Private Public Partnership (PPP)
What is the difference between a responsible bidder and responsive bidder?
A “responsible” bidder is a contractor who is capable of satisfactorily undertaking and completing the work. A “responsive” bidder is a contractor who submits a bid that accurately reflects the tasks spelled out in the bid solicitation and would be bound to perform should the bid be accepted.
Agencies can have a large amount of discretion in selecting “best value” procurement. If bid selection is protested and goes to court, what two questions do the courts seek to answer
- Did the agency comply with the FAR requirements for negotiated best-value procurements?
- Did the agency follow the selection and evaluation procedures set forth in the RFP?
What four criteria are used to justify the court’s intervention from bid mistakes
• The mistake is of such consequence that enforcement would be unconscionable
• The mistake must relate to the substance of the consideration—a “material” feature
• The mistake must have occurred regardless of the exercise of ordinary care
• It must be possible to place the other party in status quo
- Fifth criteria often used - timely notice
What is the owner’s duty if a bid mistake is suspected?
Notify the contractor and attempt to verify the accuracy of the bid before allowing reliance on the bid.
What are the four elements of promissory estoppel?
- A clear and definite offer by the subcontractor to perform the work at a certain price
- A reasonable expectation by the subcontractor that the prime contractor will rely on the subcontractor’s price in preparing the prime contractor’s bid
- Reasonable reliance by the prime contractor on the subcontractor’s bid
- Detriment to the general contractor as a result of reliance on the subcontractor’s bid and the subcontractor’s subsequent refusal to perform
What five conditions must be met in order for a contract to be enforceable?
- Real agreement between parties – “meeting of the minds”
- Subject matter of contract must be lawful
- Valid consideration for each promise
- Parties must have legal capacity to contract
- Compliance with legal requirements regarding the form of the contract (i.e. written contract)
Contract language is typically interpreted as it would be understood by a reasonably intelligent and logical person familiar with the facts and circumstances of the contract. What two sources of information do the courts use in making this determination?
- Language used by the parties in the contract
* Facts and circumstances surrounding contract formation
What are the three sources of definitions used in defining contract terms?
- Parties have defined the terms within the contract
- Technical terms are given their meaning within various industries and trades
- General terms are given their widely accepted meanings
When preprinted contract forms also include handwritten and typewritten terms, what is the generally accepted order of precedence regarding interpretation of these terms?
- First, handwritten terms
- Second, typewritten terms
- Third, preprinted form
