Construction Engineering 380 Subsurface Conditions

Unforeseen Conditions Unforeseen conditions are most commonly found in remodeling work and subsurface work (excavation, retention, mining, environmental remediation) Almost all construction places responsibility for unforeseen conditions on the owner through a variety of methods, most following the federal DSC clause guidelines. (the owner pays one way or another –either through increased cost upfront or change orders)

Differing & Unforeseen Conditions Differing Site Conditions- actual conditions differ from the representation made in the contract documents (MSP airport) Unforeseen Condition- unusual situation not reasonably anticipated based on contract documents

Differing & Unforeseen Conditions Contractor is awarded damages for differing site conditions Contractor NOT awarded damages for unforeseen site conditions unless they rise to the level of practical impossibility, commercial senselessness, or there is contract language transferring risk (common)

Differing & Unforeseen Conditions If the contract is silent, then ONLY unforeseen conditions can arise Unknown physical condition of an unusual nature that differs materially from those ordinarily encountered (buried tank example) Doesn’t cover weather, economic condition, market factors, etc.

Differing & Unforeseen Conditions Owner is liable only if –Risk transfer clause is executed a priori –Objective or practical impossibility –Tort claim arises –Ambiguous contract could be interpreted as differing (not unforeseen)

Differing & Unforeseen Conditions Unforeseen site conditions clause is standard in most contracts. Can be invoked if –Condition is unknown to contractor –Condition is unusual –Condition is materially different

Differing & Unforeseen Conditions Objective or practical impossibility was covered in previous lecture (commercial senselessness) Nondisclosure- owner has a duty to report (widely recognized by most courts). Soil borings is example Tort claim- additional contract clauses to deal with torts (fraud, negligence, misrepresentation)

Differing & Unforeseen Conditions Ambiguity- need interpretation of whether the condition is unforeseen or differing (transfer clause eliminates distinction in most cases) Prebid site inspection- required in most contracts. Visible conditions cannot be later claimed as unforeseen or differing