Legal Concerns for DOT Design Managers

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

2. 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

3. 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

4. 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

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

6. 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

7. 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.

8. 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

9. 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.

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

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