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M.a. Lombard & Son Co. v. Public Bldg. Com.

OPINION FILED AUGUST 21, 1981.

M.A. LOMBARD & SON COMPANY, PLAINTIFF-APPELLANT,

v.

PUBLIC BUILDING COMMISSION OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DOM J. RIZZI, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE WILSON delivered the opinion of the court:

M.A. Lombard & Son Company (Lombard) appeals from a judgment of the trial court in favor of the Public Building Commission of Chicago (Commission). Lombard presents two issues for review: (1) that it is fraudulent for a public body to advertise for bids knowing that the construction plans are incomplete and later make material departures in the plans and specifications; and (2) the "no damage for delay" clause does not absolve a public body under all conditions and circumstances. The pertinent facts follow.

Lombard submitted the lowest bid of $8,794,000 in accordance with certain plans and specifications, and was awarded the general works contract from the Commission on December 14, 1971, for construction of the Archer-Pulaski High School. The contract encompassed the construction of two buildings: building "A" to be completed in 360 days or by December 28, 1972, and building "B" to be completed in 420 days or by March 7, 1973.

Prior to the general contract, there were preliminary contracts awarded to prepare the site for construction. George Lombard, president of Lombard, testified Lombard was aware of the prior contracts as well as the contractual provisions concerning changes in the work and delays.

At a meeting on December 21, 1971, Fred Coleman, the project manager for the joint venture, informed George that Lombard was going to get a notice to proceed on December 28, 1971. George informed him that the job site was not ready and asked that the day of the notice to proceed be extended to some future date. However, the notice to proceed was given on December 28, 1971.

Lombard exhibits indicated that there were numerous charges made throughout the contract period in the drawings and specifications. Lombard contends that Bulletin No. 2, dated March 24, 1972, materially changed the bid drawings with the issuance of construction drawings and additional compensation in the amount of $221,871.40 was authorized. Bulletin No. 8, issued on May 25, 1972, changed the revisions set forth in Bulletin No. 2 and contained 17 pages of revisions. This bulletin authorized extra compensation in the amount of $126,135. Further, on February 8, 1972, the Commission had accepted Lombard's bid of $634,624 for Alternate No. 2, the integrated ceiling in Building "A", in accordance with the bid drawings. Subsequent to this acceptance, numerous changes were made and Lombard was not able to proceed with this work until December 19, 1972. Bulletin No. 40, issued January 31, 1973, required additional work to the ceiling at an added cost of more than $45,000 because of lack of information at the time of installation of the electrical and mechanical work. A stop-work order on all ceilings was issued on January 29, 1973, by the city ventilation department and was not lifted until April 5, 1973. Further, Ernest Burkhardt, field representative for the joint venture architects, testified that the work involved here was new construction, but it became a remodeling job before they were through with it.

Robert Christiansen, executive director of the Commission, testified that bids were sought before the drawings were completed to avoid the increased costs of labor and materials. However, he believed that the changes, compared to the size of the contract, were minor and reasonable from the standpoint of the Commission and were done at a later stage so as not to impede the contractor in his work. Christiansen also indicated that Addenda were issued to bidders which specifically provided that they would be incorporated into the terms of the contract. These revisions would be reflected in the construction drawings which are issued after a contract is awarded.

The Commission introduced pertinent provisions of its contract with Lombard, which are as follows:

"GC-22. Changes in the Work

a. The Owner may make changes in the work of the Contractor by making alterations therein, or by making additions thereto, or by making deductions or omissions therefrom without invalidating the Contract, and without releasing or relieving the Contractor from any guarantee given by him pursuant to the Contract provisions, and without affecting the validity of the guarantee or performance bond, and without relieving or releasing the surety or sureties of said bond. All such work shall be executed under the conditions of the original contract. The Contractor shall submit to Architects `As Built' or revised drawings clearly showing the revised work, all as required by Section 1-7 of the Technical Specifications.

GC-24. Delays and Extensions of Time

b. If the Contractor be delayed at any time in the progress of the work by any act or omission of the Owner or the Architects, or of any employee of either, or by any other contractor employed by the Owner, or by changes ordered in the work, or by strikes, lockouts, fire, unusual delay in transportation, unavoidable casualties, or any causes beyond the Contractor's control which would not reasonably be expected to occur in connection with or during performance of the work, or by delay authorized by the Architects pending a decision, or by any cause which the architects and Owner shall decide to justify the delay, the time of completion shall be extended for such reasonable time as the Architects and Owner may decide.

* * * d. It is further expressly understood and agreed that the Contractor shall not be entitled to any damages or compensation, or be reimbursed for any losses, on account of any delay or delays resulting from any ...


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