• June 3, 2014

Bioswale. Image from Wikipedia

How much would you charge the City of Mankato to build 1,350 linear feet of aggregate based street with sanitary sewer, watermain, and storm sewer and excavation of 2,300 linear feet of bioswales? I accompany the post with a pretty picture of a bioswale to help you a little with your bid.

As you think this through, keep in mind that common excavation material would be brought to and stockpiled at a location within 0.5 miles of the site as directed by the city engineer. (Obviously, if your stockpile were placed closer or further from the site, your bid would have to be adjusted accordingly.)

How about $476,102.17? Is that acceptable to you? Sound a little low, maybe?

It was a trick question and you totally fell for it. You failed to follow up and ask whether the 0.5 miles is in a straight line or “vehicle haul distance.”

Don’t feel too bad. CEI and the City of Mankato apparently did not have this little detail nailed down either (and this is what they do for a living).

The fact is that all construction projects of even relatively small size suffer from a profound and fundamental flaw: humans are implicated (like the law, incidentally). Because of these highly imperfect system components (human beings), these complex projects have failure built right in.

CEI v. City of Mankato is a great case to read for any lawyer interested in the course of construction litigation. There are classic construction litigation elements: change orders, allegations verging on coercion or duress (“McCarty testified at deposition that he prepared and signed Change Order 3 at Brindley’s insistence”), communication uncertainty/failure (“McCarty testified that he believed that he told Brindley that the city would not approve a change order in the amount CEI was requesting…” (emphasis in Court of Appeals decision)), and blurred chain of command (“the city identified Mike McCarty as the project engineer, but did not describe his duties”), claims and remedies under the contract and claims/remedies outside of the contract (i.e., equitable estoppel).

And last week the Minnesota Supreme Court granted CEI’s petition for further review. So contractors with Minnesota public entities and Minnesota public entities all hope they will get some guidance on how to apportion and, hopefully, minimize the inherent costs of human short-comings (such as lack of foresight) in complex building projects. Of course, the guidance comes from another complex system with its own inherent limitations, the legal system, but you have to start somewhere and you have to end up somewhere too.

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