Holloway Consulting is a leading Construction Expert firm providing construction contract claim, dispute and advisory services to all parties in the industry. Please see our Design Experience page.
Over the past 22 years, we have been certified as a construction expert before arbitration panels and courts in each of the 16 claim types shown at our page on Construction Claims. We have testified on behalf of owners, designers and contractors on each type of construction contract claim.
CONTRACTOR CLAIMS | DIFFERING SITE CONDITIONS CLAIMS
As a Construction Expert, we advise our clients that encountering differing site conditions can be financially catastrophic. An assessment of the contractual allocation of risks should be performed before a bid is submitted to answer questions such as:
- Is there a DSC clause in the contract?
- Are the boring logs (and other geotechnical data) part of the contract?
- Are there exculpatory clauses wherein the owner denies responsibility for incorrect subsurface conditions?
These are but a few of the questions a prudent contractor will address in the course of bid preparation.
In the process of establishing the basis of recovery for a DSC, a contractor should show that a site inspection would not have disclosed the conditions encountered. Regardless of the representations (or lack of) made in the contract, the necessity to perform a reasonable site inspection is vital. Quite obviously, a contractor will not be held responsible to perform numerous borings (or other investigations) during the usual short bid period. However, a contractor will be expected to ascertain, to the extent possible, subsurface conditions from a reasonably conducted site visit. If conditions are discernable from the site visit (particularly if they contradict the “represented data”), the contractor should take such information into account. This relates back to whether (or not) a site investigation would have allowed the contractor to ascertain the actual conditions encountered. If the actual conditions could not be reasonably discovered, the contractor stands a better chance to recover.
The most substantial roadblock to recovery of a DSC claim is failure to provide notification. Contracts often contain a notification requirement, particularly with regard to DSC, and have even required that the uncovered unknown subsurface conditions remain undisturbed until investigated by the owner. Failure to strictly adhere to these notice requirements can foreclose a contractor’s recovery for an otherwise valid DSC claim. This procedure is necessary to afford the owner the opportunity to modify and alter the design or performance requirements and thereby minimize and mitigate the actual effects of the DSC.
The Holloway Consulting Group, LLC
Construction Claim Consultants – Construction Claims Experts
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International : (888) 545-0666
Fax: (303) 716-0432
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