Court of Appeals of Minnesota

Case no.: A25-0754
Date filed: March 30, 2026

A Minnesota appeals court has ruled that a geotechnical report attached to a bid packet did not become part of the contract. The contractor had not been entitled to rely on the report and could not establish a differing site condition.

The City of Moorhead planned to construct streets under new railroad bridges and retained SRF Consulting Group Inc. to design the project. SRF subcontracted the geotechnical evaluation to Braun Intertec Corp., which produced a 283-page “Geotechnical Report.”

The city prepared a bid packet for contractors interested in bidding on the construction contract and included Braun report as an attachment to the packet. The instruction to bidders advised contractors of the documentation that had to accompany the bid but made no mention of the Braun report. The bid packet with attachments, along with the instruction to bidders, were condensed into a PDF file and made digitally available to bidders.

The city awarded the construction contract to Ames Construction Inc. Article V of the contract, the “Contract Documents,” enumerated eight components, including the instructions to bidders and the form of proposal/bid packet. There was no mention of the Braun report.

Ames Construction designed and constructed temporary earth retention systems for the project. The engineer hired by Ames used the Braun report when designing the systems. The constructed systems experienced soil movement and slope failures, and the systems had to be redesigned and reconstructed, causing significant delay and increased costs. Ames alleged the information in the Braun report had been inaccurate.

Ames Construction sued the city for differing site conditions and breach of the implied warranty of the design documents. The city responded that the Braun report had never been part of the contract and that Ames could not rely on the report to support its claims. The Clay County District Court agreed and granted summary judgment in favor of the city. Ames appealed.

The Court of Appeals of Minnesota said the contract itself, in Article V, defined the contract documents. This included the bid packet and instruction to bidders. However, the Braun report had been a mere attachment to the bid packet, not part of the body of the document. This was consistent with the instruction that told bidders what to submit; it did not include the Braun report.

“Article V only identifies eight components that are considered contract documents and does not include any reference to attachments, which is where the Braun report was included…. Under the contract’s plain language, bid packet does not reference or imply that the Braun report or any geotechnical evaluations provided by the city would be considered part of a ‘bid packet’ or that such evaluations were intended to be a contract document.”

The court rejected the argument that consolidation of all the documents in a single PDF file established the Braun report attachment as a contract document. “If the city intended for every document that was provided to bidders to be a contract document, then parts of the contract would be rendered redundant. For example, Article V, identifying the eight components that are ‘contract documents,’ would be unnecessary if every document provided to bidders was considered a contract document under Ames’ argument.”

“Neither the listed contract documents nor the specific papers required to be in the bid packet referenced the Braun report or the attachment area where the Braun report was located. This shows that the Braun report was not considered part of the contract. Thus, the district court did not err in its conclusion that the Braun report was not a contract document.”

It is a stretch to say that the plain language of the contract excludes attachments to listed documents from the contract documents. Of course, the bidding instructions did not require submittal of a 283-page report the city itself had provided to the bidders. And, if the city did not intend bidders to rely on the report, why did the city provide it at all?

In hindsight, perhaps bidders should have sought pre-bid clarification as to whether attachments to the bid packet were considered contract documents. The failure to do so is understandable, however. Referenced attachments are generally considered incorporated into the body of an agreement.

Participants:
For Ames Construction: Dean B. Thomson, Minneapolis, Minnesota
For the City of Moorhead: James J. Thomson, Minneapolis, Minnesota

Before: Judges Worke, Ross, and Bratvold

Opinion by: Judge Worke

Outcome: Summary judgment in favor of city affirmed

Source: Please click here to read the complete opinion.