ACPA Quarter 4 2018

Concrete Pavement Progress www.acpa.org A C P A N E W S 28 after they are incurred, the engineer is given the option to act immediately to reduce them. This will help promote a good working relationship. 6. How is the existence of differing site conditions substantiated? Although the site conditions fit within one of the two contractual bases discussed above, the engineer may still not agree. That can pose a problem. Once work is completed, the evidence of the differing site conditions will be erased unless the contractor properly documents the conditions encountered. How to accomplish this depends on what you encounter. Take pictures and/or videos. If you encounter unanticipated structures such as utility lines, construction debris or boulders, try to memo- rialize with visual evidence. Since part of what is different—gravel versus cobbles versus boul- ders—and its impact is defined by size, make sure to include measurement as part of your evidence. For photos or video, include a tape measure or other means to calculate size, such as a person standing next to the structure. Some conditions are not as conducive to visual evidence as others. If, for example, the soils are wetter and/or less stable than anticipated, the best way to substantiate this is with geotechnical testing. Have this done by a geotechnical firm. More specifically, if you cannot make the cut suitable as fill because it is too wet—for example, the gap cannot be closed between existing and optimum—take moisture tests. If the ground is too hard to drive sheeting or to bore through, take strength tests. If the water table is higher than shown in the borings, have a dewatering firm measure elevations. If the engineer still insists that you should have anticipated what was encountered, ask the en- gineer for the site data on which they relied to design the project. You can also look at bid tabs; how other contractors and engineers priced the work is strong evidence of whether you have encountered differing site conditions. 7. How is the impact in time and dollars for the differing site conditions measured? When required to perform either a different type of work, such as muck excavation versus common excavation, or a different quantity of work than anticipated, it is easy to measure the impact. There is a start and finish to measure the extra work. What is common with differing site conditions, however, is that contractors are performing the anticipated type and quantity of work, but under conditions that make it more expensive to perform. It is more expensive be- cause the differing site conditions prevent you from obtaining the anticipated level of produc- tion, and the project takes longer to complete. Contractors who are performing the same work, but at a lower production rate, have two meth- ods by which to calculate the impact in time and dollars. Under both methods, you create a baseline to compare actual productionwith what production should have been if site conditions were as described. The bestmethod involves comparing your reduced production as a result of differing site conditions with the production when performing the same work on a site with no differing site conditions. This is called the Measured Mile Approach. The second method, which should only be used when all of the work for that bid item is affected by the differing site conditions, involves compar- ing reduced production with the production you anticipated at bid time. There are two compel- ling reasons to avoid using this second method if you can. First, the actual production rate, even in an area unaffected by the differing site conditions, will almost always be less than the rate anticipated at bid time due to the normal losses of production, such as badweather, equipment breakdowns, late material deliveries and re-work. Second, the owner can rightfully argue that there is no evidence that you could have and would have obtained your planned/bid production rate but for the differing site conditions. To help coun- ter that, always generate an accurate as-planned schedule and distribute it to the engineer at the pre-construction meeting. You can then divide the estimated quantity of the affected bid item by the duration for that item to calculate the planned daily production rate. 8. What if the engineer denies a differing site condition? If the engineer denies the request, or does not respond, the contract will invariably dictate additional steps that must be taken, or you will waive your claim. Figure out what those steps are and follow them exactly as they are written. Continue to track costs as work is performed. Make sure that you’re tracking the impact in time as well as dollars. You do not want to lose your right to a time extension, prove a differing site condition claim, and lose that money in liquidated damages just because you initially thought only of the dollars associated with the differing site condition. Conclusion Even if all of this makes sense, contractors will not succeed in getting paid for the cost of differ- ing site conditions unless and until they believe they have the right to be paid.Whilemaintaining a good relationship with the engineer is a laud- able goal, it shouldn’t prevent a contractor from requesting compensation for working under site conditions that were not anticipated. When you make a mistake, you pay for it. When the engineer makes a mistake, the owner should pay for it. That is fair and should be the founda- tion of a good relationship. A simple and effec- tive way to communicate your right to extra compensation is to say this: “The money that I am asking for now would have been part of my bid at the outset if I had known then of the site conditions of which I am now aware. The owner is therefore not paying anything more than he should have based on what we know now.” About the authors: Thomas Olson is the founding partner of Olson Construction Law. Tom’s commitment is to provide guidance on how to resolve issues on the jobsite, not in the courtroom. Tom has worked on highway heavy projects throughout much of the United States for more than thirty years. A prolific speaker and writer as well as attorney, his expertise is in concrete and asphalt paving, utility, earthwork and bridge construction, schedule analysis, material testing, and the technical and legal obligations of both engineers and contractors. Rielly Lund is a committed advocate for contractors, with the ability to quickly and accurately analyze a client’s issue within the parameters of each specific contract. Rielly works with contractors through all stages of construction, from bidding to acceptance, with the goal of minimizing risk and maximizing profits for contractors. With this in mind, Rielly enjoys discussing various contractual requirements with contractors before issues arise, so they are best able to meet any challenges head on.