ACPA Quarter 1 2019

www.acpa.org Quarter 1, 2019 25 Contract Disclaimers May Say Otherwise But Contractor is Right to Rely on Soils Repor ts By Thomas R. Olson, Esq., and Rielly J. Lund, Esq. IN THE 4TH QUARTER 2018 ISSUE of Concrete Pavement Progress, we pre- sented a roadmap for differing site conditions claims. The most straightfor- ward example of this is when a contractor encounters subsurface conditions different than indicated in the contract documents. The most common way an owner indicates ‘anticipated subsurface con- ditions’ is through soil borings. In practice, contractors rightfully rely upon the borings to calculate related costs, scheduling and construction methodology. The problem that so many contractors experience is that when they en- counter subsurface conditions different than indicated in the borings, the engineer refuses to provide additional compensation or time for the related impact. The engineer’s rationale is that the contract contains disclaimers that bar any such claim. And what does the contractor normally do when it receives this response? Nothing. The contractor is paid nothing and, in fact, often pays liquidated damages for the related delay. Is this fair?No. And, more importantly, many courts throughout the country have held as a matter of law that contract disclaimers are unenforceable. The net result is that contractors can and should receive both additional compensation and time extensions when they encounter subsurface con- ditions different than what the soil borings indicate notwithstanding contract disclaimers. A. Typical Contract Disclaimers Engineers have increasingly attempted to shift the risk of differing site conditions solely onto the contractor. The primary means engineers have used to accomplish this is by including disclaimers in the contract which limit or prevent a contractor from relying on the soil borings. continues on page 26 » A B O U T