ACPA Quarter 4 2018 Quarter 4, 2018 27 IT IS AN ALL TOO PREDICTABLE ASPECT OF CON- STRUCTION: conditions that are different than anticipated. What is also too common is not getting paid for the related extra costs and not getting a time extension for the related delay. Understanding the issue and knowing what ques- tions to ask and what steps to take are essential to additional pay and time.These eight questions and answers provide a roadmap to successfully proving the effects of differing site conditions. 1. What are “differing site conditions?” Most contracts define “differing site conditions” as conditions that are either different from those indicated in the contract documents or different from those ordinarily encountered in performing similar work. Anticipated subsurface conditions that react in an unanticipated manner may also qualify as differing site conditions. 2. What must the owner do to indicate site conditions in the contract documents? Aproject owner can indicate site conditions in the contract in several ways. The simplest way is to expressly state what the conditions will be. This includes providing plans detailing the utilities on the site or by including soil borings, which represent the site conditions, such as the type or hardness of the soil or the groundwater level. Engineers frequently attempt to disclaim a contractor’s right to rely on the site condition information expressly provided. For example, documents will include language that states that the soil borings are “for information only” and “not to be relied upon.” Contractors know, of course, that the only reason that these bor- ings are provided is for contractors to rely upon themwhen bidding the job. As a result, more and more courts have ruled that such disclaimers are unenforceable. Project owners also try to counter contractors’ claims for compensation based on differing site conditions by saying that the contractor should have discovered the differing conditions as part of the site investigation. Keep in mind that a contractor is normally required to learn only what can be seen and read. Absent a contract provision saying otherwise, contractors are not required to conduct below-grade testing. On the other hand, if the owner states that soils information or plans froma previous project “are available upon request,” you are held account- able for what that information states, whether you read it or not. A project owner can also indicate site conditions through what he expressly states for the work re- quirements. If, for example, the contract includes a large quantity of water to be used to make the cut suitable as fill, this can be characterized as an “indication” that the soils are dry. There are many examples of this, so contractors should consider what the contract documents and plans “indicate” to next time they are bidding a job and how those indications affect the bid. 3. What must occur for the conditions to be “different from those ordinarily encountered in performing work of the character involved?” On more and more jobs, the owner includes little or no site data. This allows the owner to save money. It is also part of an increasingly widespread owner view that the less they say the better. But be aware that contractors can still encounter differing site conditions even when the owner says little or nothing about anticipated site conditions. If the work cannot be performed as designed, or to perform it as designed will require a type or quantity of work beyond what was anticipated, you have the basis for a differing site conditions claim. 4. What to do after encountering a differing site condition? First, and most importantly, immediately stop work . Do not continue until you have discussed with the engineer. Recognize that nearly all contracts will have a written notice requirement to the engineer, and that written must be given immediately upon encountering an alleged dif- fering site condition. Do not rely on verbal notice or conversations over the telephone—take the time to write a letter to the engineer. Cite the specification when giving the notice, and inform the engineer that you are unable to continue until after a decision is made as to the differing site condition. Remember, the best leverage is your work. If work continues, you lose your leverage. Ask the engineer to investigate the condition and make a decision. Most contracts will require the engineer tomake an investigation, and if yours does, cite the specification. Make sure that you offer the engineer facilities on site to track your extra costs. Most contracts require this, but even if yours doesn’t, you should still make the offer. This will undermine their ability to later argue that you didn’t properly track your costs—if they had concerns, they could have taken your offer and tracked them concurrently. 5. What if the engineer doesn’t respond? An issue that can come up is the engineer either delaying a decision, or not making one at all. If you can’t work, equipment and manpower is sitting idle. Even if you can, that work likely is not progress-controlling. One way to elicit a decision from the engineer sooner is to immedi- ately evaluate whether the contract provides for payment of delay-related extra costs. If it does, you should immediately provide written notice to the engineer that: (1) you are being delayed and/or disrupted while waiting for a decision on how to proceed; (2) you have a right to pay- ment for this under section ____ of the contract; and (3) your extra costs per day total _____. By providing notice right away of the potential delay/disruption-related extra costs, you give the engineer the basis on which to make a decision immediately to either eliminate all such costs or otherwise mitigate them. Rather than surprising the engineer with these costs for the first time Dif fering Site Conditions: A Roadmap For Additional Compensation and Time By Thomas R. Olson, Esq. and Rielly J. Lund, Esq. Rielly J. Lund, Esq. Thomas R. Olson, Esq.