Geotechnical Information Practices in Design-Build Projects (2012) / Chapter Skim
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Pages 10-19
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From page 10... ...
8 CHAPTER TWO CASE STUDIES IN LEGAL AND CONTRACTUAL ISSUES ASSOCIATED WITH DIFFERING SITE CONDITIONS INTRODUCTION One of the most important issues confronting owners, designers, and contractors on any transportation project is the nature and predictability of geotechnical conditions. Geotechnical conditions not only have an enormous impact on project design, but also directly affect project cost and schedule.
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9 including those published by the American Institute of Architects and the Engineers Joint Contract Documents Committee. Although the FAR language may differ slightly from that used in other private and public construction contracts, the differences are relatively minor and do not substantively affect the contractor's ability to recover the additional costs and time caused by differing site conditions.
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10 of work than one would normally have expected or requires a different method of performance (Loulakis et al.
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11 occurred when a contractor encountered subsurface water (as expected) , but its flow rate was unusual and unforeseeable (Kelleher 2009)
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12 clause stating that the contractor's failure to become familiar with the prevailing work conditions would not relieve the contractor from responsibility for performing work at no additional cost to the owner. The court held that reliance on the logs was not reasonable because it did not take into consideration the clear disclaimer language in the contract (Loulakis et al.
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13 portation Commission, 777 So. 2d 649 (Mississippi 2000)
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14 existence of a DSC. The first is a Virginia case involving a claim by a contractor against VDOT, with the case analyzing the contractor's failure to meet the notice requirements of the contract and an alleged Type 2 DSC.
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15 event and therefore an act of God, which did not qualify as a DSC. The court noted that Kerr Lake is a dam-controlled reservoir with its water level managed by the Corps of Engineers to prevent downstream flooding on the Roanoke River.
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16 The appeals court was not persuaded by any of these arguments. It found that including a small contingency in a bid does not preclude a contractor from making a DSC claim when the subsurface conditions differ materially from those indicated in the contract.
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17 CONCLUSIONS The following conclusions can be drawn from this analysis: • The design-builder is entitled to rely on the geotechnical information contained in the DB RFP, and the DSC furnishes a mechanism under which the design-builder can claim additional costs and time if the RFP information does not reasonably match the actual conditions. • To be successful in a DSC claim, the design-builder must rigorously adhere to the notice conditions contained in DSC clause.
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