When road construction contractors encounter soil conditions that constitute a differing site condition, project owners or engineers often refuse to provide additional compensation or time for the related impact. The owner/engineer’s rationale relies on disclaimers in the contract that disallow reliance on soil borings or other geotechnical analysis. However, many courts throughout the country have held as a matter of law that contract disclaimers are unenforceable. Courts have made this conclusion for three main reasons:
1) Soil borings provide the most reliable information on subsurface conditions.
2) Enforcement of site disclaimers would render differing site condition clauses meaningless.
3) Differing site condition clauses protect owners as well as contractors.
Thus, contractors can and should receive both additional compensation and time extensions when they encounter subsurface conditions different than what the soil borings indicate notwithstanding contract disclaimers. Despite this law, claims for differing site conditions are denied all the time because contractors are unaware of the current state of the law. If you encounter a differing site condition that has caused you to incur additional costs, make sure to consult with an attorney who knows how to properly navigate your state’s claim process.