Legal Concerns for DOT Design Managers Saritha R Anjilvel Assistant Attorney General, Transportation Section, Civil Law Department of Law

Department of Law (Attorney General’s Office) CIVIL LAW DIVISION Child Protection Legislation/Regulation Collections and Support Natural Resources Commercial/Fair Business Oil,Gas & Mining Environmental Opinions, Appeals & Ethics Human Services Reg. Affairs and Public Advocacy Information and Project Torts/Workers’ Comp Support Transportation

WHEN TO CORRECTLY USE A TRANSPORTATION ATTORNEY Right of Way issues that cannot be resolved by settlement Regulatory issues that require a legal opinion Bid Protests Contract Claims that cannot be resolved by settlement Third Party Claims against the DOT&PF or a named DOT&PF employee for activities connected with their official duties Third Party Requests for DOT&PF Expert Testimony and Evidence

Contract Claims Concerns for the Design Profession Timing: it may be years before a claim/suit is filed One purpose of contract: to allocate risk Risk materializes in some form Contractor seeks to repudiate risk allocation Result: Contract claim or lawsuit

Some Theories of Recovery Mutual Mistake Frustration Impossibility by Supervening Illegality Differing Site Conditions

And now, some case law… Mat-Su /Blackard/Stephan and Sons v State of Alaska 647 P.2d 1101 (Alaska 1982). MBS was low bidder on bid to pave a section of Rabbit Creek Road, Anchorage Based its bid on using a gravel pit (Spendlove source) nearby Legal right to remove gravel was assumed by MBS Prior to award of contract, residents voiced concern to State who notified contractor of concern Contract was then awarded At or before time work began, residents went to Zoning Board Of Examiners and Appeals and Board denied MBS the right to remove the gravel; decision was upheld by Superior Ct

As a result of loss of use of Spendlove pit, MBS had to haul gravel from more remote source MBS sought to modify the contract administratively to compensate for higher costs in transporting gravel. Alaska Supreme Court Ruling Court examined MBS claim of mutual mistake Mutual mistake: 1. Where mistake of both parties at time of contracting as to a basic assumption on which the contract was made; 2. The mistake had a material effect on the agreed exchange of Performance; and 3. The party seeking relief did not bear the risk of the mistake. Result: Supreme Court rejected claim for relief because the contract allocated to MBS the burden of providing the gravel: and hence the risk.

Mat-Su /Blackard/Stephan and Sons v State of Alaska 647 P.2d 1101 (Alaska 1982). Court examined other theories of recovery proposed by MBS: Frustration: Where party cannot perform under the contract through no fault of that party, but because of a fact of which he has no reason to know, and the non-existence of which is a basic assumption on which the contract was made. Court rejected MBS argument because the source of gravel was immaterial to the State Impossibility (commercial impracticability): If performance in the manner specified by the parties is commercial impracticable (ruinous to Contractor), contractor may seek relief. Here, Court rejected MBS’ argument because MBS chose method/source of obtaining gravel unilaterally

Mat-Su /Blackard/Stephan and Sons v State of Alaska 647 P.2d 1101 (Alaska 1982). Impossibility by Supervening Illegality: MBS argued that because removal of Spendlove gravel became unlawful because of zoning decision, it was entitled to relief. The Court rejected this: decision was not enactment of new law but application of pre-existing law to the activity.

OTHER LEGAL ISSUES Differing Site Conditions Approaches Clear unambiguous definitions Inspections and access to all reports Disclaimers

WRAP UP AND Q & A Email: saritha.anjilvel@alaska.gov