By Steve Rizer
When a contractor prepares its bid or proposal on a construction contract, it should review and evaluate both the differing-site-conditions provisions and any disclaimer or exculpatory provisions in the proposed contract and make a risk assessment based on those contract provisions. This is one of several key steps that the author of a new special report, which WPL Publishing recently released, urged contractors to take when preparing such a bid or proposal.
The report, called "Differing Site Conditions," recommends that a contractor “review every piece of paper and physical evidence that is available to it before finalizing its bid.” Such a review should encompass the project site, soil data, geological and other technical reports, soil and boring reports, prior as-built drawings, former contractor reports, among other things, the document states. “The list of the types of possible information available to the contractor is tremendous, and each project provides a new set of information to possibly review.”
In the report, author Marilynn Klinger, who heads the Construction Practices Group out of the Sedgwick LLP’s Los Angeles office, also outlined a course of action for contractors to take when they encounter a situation that appears to represent a differing site condition.
In such a circumstance, the contractor should “immediately put the owner on notice of the issue,” the report suggests, noting that this should be done even before the contractor has completed its investigation and assessment of the differing site condition. Additionally, the report urges contractors to “determine whether the condition was the recognized and usual physical condition of the site” and “identify the exact physical condition” encountered.
The report -- the second in a series of reports on construction contract claims, changes, and dispute resolution that WPL is making available to ConstructionPro Network members -- also lists examples of “type one” and “type two” differing site conditions, various types of “inadequate investigations,” several disclaimer provisions found in contracts, among other things. Members can access the report at http://constructionpronet.com/Book-Construction-Contract-Claims-ThirdEdition.aspx.