How are differing site conditions handled in public road construction contracts?
1. Identify the Type of Differing Site Condition
First, it should be noted that there are two types of differing site conditions. The first type of differing site conditions occurs when a contractor encounters conditions that are different from those described in the contract.Read more
The second type of differing site conditions occurs when a contractor encounters conditions that are different from those ordinarily encountered and generally recognized as typical for the type of work described in the contract. These conditions may relate to subsurface or latent physical conditions, or unknown physical conditions of an unusual nature, and may potentially be identified at any point in the course of a project.
2. Provide the Required Notice
Second, the essential thing to remember with differing site conditions, and a point that cannot be overstated, is the vital importance of providing notice to your prime contractor or project owner/engineer once the differing site condition is identified. Typically, this notice must be: (1) in writing; (2) include specific details of the differing condition; and (3) be given to the Engineer before disturbing the differing conditions at all and certainly before performing any work that is affected by the condition. This notice provides the Engineer with the opportunity to investigate the differing site condition and to make a determination as to whether an adjustment to the contract should be made.
3. Follow the Procedure Outlined in the Contract
Third, it is important to follow the procedure outlined in the contract. States’ standard specifications typically provide a specific procedure to follow in providing notice to an Engineer, and these procedures should be followed. This process typically includes a state specific form that needs to be completed and submitted to the Engineer. This is important because, similarly, most state specifications also include language stating that if specific notice procedures are not followed, a state will not allow any contract adjustments for extra expenses or additional time that result from differing site conditions.
The bottom line is to provide written notice to your Engineer early, and to contact an attorney as soon as possible to help you follow the myriad procedures that are required to successfully navigate this process.