P.O. Box 200842
Austin, Texas 78720
(512) 619-8639
Fax (512) 372-1645

Oprima aquí para información en Español "Seguro que hablamos Español” [email protected]

Practice Areas

Our office enjoys handling a wide variety of legal matters including:

  • Commercial / Business litigation (including breach of contract).
  • Mediation services.
  • Complex multi-party litigation.
  • Business and Real Estate Disputes.
  • Construction litigation.
  • Landlord / Tenant disputes.
  • Business torts including fraud and misrepresentation.
  • Personal Injury Litigation.
  • Appellate brief writing and appellate argument.
  • Alternative Dispute Resolution.
  • Medical Malpractice (prosecution and defense).
  • Texas Deceptive Trade Practices Act claims.
  • Negligence.
  • Breach of fiduciary duty.
  • Administrative Law (including representing health care professionals before boards and the State Office of Administrative Hearings “SOAH”).
  • Criminal law defense (federal court).
  • Ad valorem (property) tax disputes.
  • Insurance / Disability disputes and litigation.
  • Real estate title examination and related issues.
  • Real estate contracts and leases.
  • Foreclosures.
  • Will preparation.
  • Creditor's rights.

Contractor does not bear risk of overruns when bid documents misrepresent extent of work

Pipeline operating company El Paso Field Services solicited pipeline construction bids based upon contract documents and a distributed bid package which instructed that any contractor bids were to be based on the contract / bid package without modifications.   Subcontractor MasTec won the contract award and agreed to perform the work for a lump sum.  The contract between the parties stated in relevant part that El Paso had exercised “due diligence” in locating and identifying pipeline crossings and obstructions and that MasTec was familiar with the scope of work to be performed and assumed full responsibility for any conditions associated with successful completion of the installation of the new pipeline.  The problem arose shortly after MasTec began to perform the work as El Paso had represented in the bid specifications that there were only 282 crossings / obstructions, when in reality there were 794 or three times as many and this substantially increased the cost of MasTec’s performance and delayed the completion of the contract.  MasTec filed suit for millions in cost overruns claiming El Paso had failed to exercise due diligence in identifying the number of crossings / obstructions and El Paso in contrast stated that MasTec had assumed full responsibility to perform the work for the agreed upon lump sum price.  The Houston Court of Appeals on May 6, 2010 in the case of MasTec North America, Inc. v. El Paso Field Services, L.P.upheld a jury award of $4.7 million in favor of contractor MasTec for the cost overruns.   The court stated in relevant part that a contractor as a matter of law is not precluded from recovering against an owner, under breach of contract for defective specifications, notwithstanding investigation and lump-sum provisions in the contract, when an owner such as El Paso in the instant case, was in a better position to know whether the specifications were sufficient for the intended scope of work and the owner made representations concerning the reliability of the job specifications.  The court also said that even if a contract places the risk of unexpected site conditions on the contractor, the contractor is not required to bear the risk when the bid documents misrepresent the nature and amount of work to be performed.

Background image courtesy of Akumar