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Unforeseen site conditions typically spawn two types of claims based on two distinct but related theories: differing site conditions (DSC) and defective specifications. A contractor may attempt to circumvent the limitations on recovery under a DSC provision by characterizing its claim as one for breach of contract due to defective specifications. In Comptrol Inc v. [...]
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Engineer Not Liable for Breach of Implied Warranty of Design
Betterment,Damages,Differing Site Conditions,Implied Warranty of Specifications,Negligence,Warranties
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When an engineer designed a road that failed because the impermeability of the underlying soil caused water to accumulate between the soil and the asphalt, resulting in the road floating and the asphalt cracking, the project owner sued for negligence and breach of implied warranty. Because the soil condition was an unanticipated, differing site condition, [...]
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Risk of Differing Site Condition Not Shifted to Contractor
Changed Conditions (Differing Site Conditions),Differing Site Conditions,Site Investigation Responsibility
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Contract provisions requiring contractors to perform site investigation and inspection prior to bidding did not impose the risk of subsurface conditions on the contractor, and therefore, did not preclude a claim for equitable adjustment. When the contractor began work it discovered a deep scour hole in the river bottom that prevented it from building cofferdams [...]
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Differing Site Conditions and Lost Productivity Entitle Contractor to Additional Compensation
Change Orders,Damages,Differing Site Conditions,Lost Productivity,Reliance,site information reliance
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A construction contractor was entitled to change orders where it encountered differing site conditions that required the use of form footings instead of trench footings as has been planned. The plans and specifications incorporated into the contract contained affirmative indications that the subsurface conditions would be consistent with the use of trench footings. The owner [...]
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Differing Site Conditions: Can You Recover Increased Costs?
Differing Site Conditions,Site Conditions,site information reliance
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In some parts of the country, subsurface conditions create great financial risks for contractors. The “Differing Site Conditions” clause is one of the tools owners use to remove some of the risk and, therefore, maintain competition in the bidding process. Generally, a Differing Site Conditions clause lessens a contractor’s risk of incurring additional costs for [...]
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Contractor sues engineer for misrepresenting site conditions
Breach of Contract,Contractor Claims against Design Professionals,Differing Site Conditions,Economic Loss Doctrine,Individual Liability of A/E,Misrepresentation,Negligent Misrepresentation,Statute of Limitations
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Where a general contractor prepared its bid in reliance upon information provided by the project owner’s engineer, and the site conditions differed from what was represented, the contractor sued the engineer for misrepresenting the conditions. Both the contractor and the engineer had separate contracts with the owner and there was no contractual relationship between the [...]
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Contractor Entitled to Recover Additional Compensation Due to Project Owner’s Failure to Disclose Material Information During Bidding Process – even Where Nondisclosure was not Done with Affirmative Intent to Conceal the Information
ConstructionRisk.com Report Vol. #12, Issue #12
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Differing Site Conditions,site information reliance
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Contractor is entitled to recover additional compensation due to a school district’s failure to disclose material information during the bidding process, and it is not necessary for the contractor to prove affirmative fraudulent intent to conceal the information. This California Supreme Court decision resolves a question that had divided several Courts of Appeal in California. [...]
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