Construction Delays and Other Claims - Construction Project Scheduling and Control - page 347

There are several reasons a claim may arise on any construction project. Among
the reasons are the following:
1. Differing site conditions : A contractor may initiate a claim in the event that the
actual site conditions differ from those mentioned in the contract documents.
A contractor may encounter underground water that wasn't mentioned in the
contract documents. Types of soil may also be found to be different from what
was mentioned in the geological (soil) report. The contractor may encounter
soil contamination or unexploded bombs that wasn't known or mentioned in
the contract. One of the possible reasons for differing site conditions is that the
architect/engineer may use old site plans that may not reflect recent activities.
The contractor may find a temporary structure that needs to be demolished
or a utility pole that needs to be relocated, and it may not have been shown
in the design drawings. It is always a good idea for the owner to provide accu-
rate information about the site and for the contractor to visit the site before
mobilization and even before bidding.
The risks of dealing with unknown site conditions are usually addressed
in the contract documents in provisions known as the “site inspection” and
“differing site conditions” clauses. These clauses typically impose upon the
contractor the duty of site investigation and the assumption of responsibility
for bearing the cost of conditions that a bidder who is performing a reason-
able prebid investigation may encounter. However, the differing site conditions
clause allows the contractor to recover the cost for unknown site conditions
that differ from the contract documents or are unusual. The owner often bears
the cost of dealing with matters that fall within the terms of the differing site
conditions clause.
2. Design errors or omissions : Errors or omissions in design may, and usually do,
require the contractor to perform additional work than originally contem-
plated. Not all design errors or omissions form the basis of a compensable
claim. Courts have rejected some contractor claims when an error or an omis-
sion is patently obvious and a contractor could have discovered it during the
bidding or negotiation phase. For example, if the floor joist spacing is shown
as 16' rather than 16'' 6 on center, it should be obvious that it is a typograph-
ical error. Also, if the structural drawings do not show any reinforcement on
a concrete column or beam section, the contractor should know that such a
member has to have reinforcement. The contractor, in general, must inquire
about obvious design errors prior to submitting the bid. Failing to do so means
the contractor must proceed at his or her own risk. 7
6 In Imperial units, the ' symbol represents feet and the '' symbol represents inches.
7 Blinderman Construction Co. v. United States, 17 Cl. Ct. 860 (1989).