Construction Engineering 380

1
Construction Engineering 380

• Subsurface Conditions

2
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)

3
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

4
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)

5
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)
• Doesnt cover weather, economic condition, market
  factors, etc.

6
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)

7
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

8
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)

9
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