Contract – Negligent misrepresentation – RFP

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Where a plaintiff alleges that the defendant negligently supplied false information in a Request for Proposal (RFP), which the plaintiff justifiably relied on in constructing a heating plant, the complaint is sufficient to state a claim for negligent misrepresentation.

“[Defendant R.G.] Vanderweil [& Company] challenges [plaintiff] O&G’s pleadings primarily with respect to the second element, arguing that O&G does not sufficiently allege any false statements by Vanderweil. However, defendant concedes that the complaint alleges at least one factual misrepresentation…

“According to the complaint, this representation is false… Vanderweil claims that the alleged misrepresentation does not appear in the RFP. However, O&G clarifies that it is set forth in the Approval to Construct, which it claims was part of the construction documents included with the RFP. Vanderweil denies that it prepared the RFP, but that contradicts the factual allegations of the complaint. …

“O&G also alleges a host of other difficulties in the construction process that derived from the false information in the RFP. Many of O&G’s allegations are couched in language that sounds in negligence rather than negligent misrepresentation — e.g.,

‘Vanderweil failed to timely address the engineering design deficiencies discovered during commissioning of the Project.’ … But taken as a whole, O&G’s factual allegations in this section give sufficient detail to raise a plausible inference that false information in the RFP, supplied by Vanderweil, caused harm to O&G.

“Vanderweil also briefly challenges O&G’s allegations with respect to the fourth, fifth, and sixth elements of the negligent misrepresentation claim (causation, justifiable reliance, and negligence). They are, however, sufficient to plausibly show that O&G could satisfy each of these elements. The complaint explains the source of O&G’s damages and asserts that those damages arose because O&G ‘construct[ed] the Project in accordance with the information supplied by Vanderweil.’ …

“The complaint likewise alleges justifiable reliance in that O&G constructed the plant according to Vanderweil’s plans. … Finally, it plausibly alleges errors and misrepresentations that an architectural firm exercising reasonable care would have avoided. While perhaps not a model of clarity, O&G’s complaint is detailed and pointed enough to satisfy Rule 8(a)(2) and state a claim for negligent misrepresentation.”

O&G Industries, Inc. v. University of Massachusetts Building Authority, et al. (Lawyers Weekly No. 02-436-12) (5 pages) (Zobel, J.) (USDC) (Civil Action No. 11-12032-RWZ) (Sept. 18, 2012).

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