ConstructionPro Week, Volume: 4 - Issue: 1 - 01/09/2015

Differing Site Condition Claims -- What Does the Contract Represent, and What Are the Contractor's Duties to Investigate?

In general, site investigations are based on observance of the apparent surface conditions. Bidders do not usually have access to the project site in order to make detailed studies of surface features, let alone subsurface conditions. Even with access, time and money can present a major obstacle to detailed study and further exploration at the bid stage. However, it is the bidder’s duty to investigate the site in order to become familiar with local conditions and to allow for a bid adjustment following any unusual findings. Nonetheless, the owner is responsible for allowing a reasonable period of time and access so that the bidders can conduct the investigation provided for in the invitation to bid.


Under the rubric of “site investigation,” it is the contractor’s obligation to review any and all documentation and other material that the owner has provided to the contractor, either in the contract documents themselves or as a part of the bid process. So, if the owner advises that certain information or material is available in its off-site offices, for example, contractors are typically obliged to review all of that information or risk not recovering when they encounter conditions otherwise suggested by that information but not reviewed prior to bid issuance.


The "duty to investigate" is just one of the issues likely to come up in a differing site conditions claim. A related issue includes what constitutes a reasonable investigation? Should a contractor take borings to determine subsurface conditions? Close attention need also be paid to disclaimers in the bid documents.


In an upcoming webinar to be held on Wednesday, January 15, Sedgwick LLP's Marilyn Klinger and Kevin Gilliland will discuss various scenarios involving differing-site-condition claims and how the construction industry deals with those claims, both via contracts and in the courts. You will be more prepared to identify those situations where differing-site-condition claims may arise and understand what parties’ various rights and remedies might be. This interactive program will help you understand the kinds of differing-site-condition claims that are encountered, such as those involving rock or soil conditions, interfering utilities, or severe weather conditions; distinguish between the two types of differing site conditions; take advantage of contractual provisions for addressing differing site conditions; understand certain seminal judicial decisions and their implications, among other things. Attendees will also receive access to the full chapter on Differing Site Conditions from the upcoming 3rd edition of Construction Contract Claims, Changes and Disputes Resolution by ASCE Press, as well as a Site Investigation Report template to use in conducting site investigations.  Click here to register for this event.




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