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3. Legal Aspects of Site Investigations
Pages 16-21

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From page 16...
... In most recent circumstances involving major underground construction, however, a preconstruction geotechnical investigation of the subsurface materials is conducted, and some or all of the resulting information becomes a part of the contractual transaction. In these situations, the contractual documents frequently change the risk allocation through specific •oiffering Site Conditions• or •changed Conditions• clauses, explicit or implied warranties, or other terms which tend to place the burden of these risks on the owner.
From page 17...
... These relatively standard clauses permit the contractor an adjustment in contract price where the subsurface conditions actually encountered in performance differ materially from those •indicated by the contract documents. • Although the drawings and specifications themselves may provide indications within the •aning of these clauses, the •indications• most directly in point lie in the data yielded by the owner's prior geotechnical investigation.
From page 18...
... 0W11BR 1 S DUTY '1'0 DISCLOSE Where the owner has, through a specific preconstruction geotechnical investigation related to the project or other relevant prior experience, obtained information indicating the nature of the subsurface conditions, u.s. National Committee on Tunneling Technology.
From page 19...
... .) This rule was recently stated by a federal board of contract appeals as follows: The government has an implied duty to help, rather than hinder, performance and is obligated to provide contractors with special knowledge in its possession which might aid the contractor in formulating his cost estimates and his bid.
From page 20...
... At the same time, he may not be required to rely on it. LIABILITY FOR SUBSURFACE INFORMATION DISCLOSED BY anum Where the contract contains a Differing Site Conditions clause, the owner assumes the risk of material differences between the actual conditions and those indicated by the geotechnical information which the owner discloses.
From page 21...
... circumstances, they are. Where there is a Differing Site Conditions clause, the disclaimer is usually seen as being in conflict with the clause's language allocating the risk based on what is •indicated by the contract documents.• Where the Differing Site Conditions clause is required by law, as in federal government construction, conflict between the mandatory clause and the disclaimer has been resolved in favor of the mandatory clause, and the disclaimers are adjudged ineffective.


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