Under what conditions might a contractor successfully claim

Under what conditions might a contractor successfully claim a differing site condition, even though the information to bidders stated that the contractor had to perform an independent site investigation?

Solution

As you already mentioned above, independent investigation of site is the first basic condition after which contractor can claim a differing site condition. Because the contractor’s failure to perform a site visit may negate the contractor’s ability to recover under the Differing Site Conditions clause. In looking at this sort of situation the Court of Claims concluded that the contractor must show, “ that the conditions actually encountered were reasonably unforeseeable based on all the information available to the contractor at the time of bidding ” “Information available” includes any and all information the contractor would have gained by making a site visit.

in addition with this there are some contractual requirements which the contractor must follow in order to successfully pursue a differing site condition claim. And the deviation from any of these contractual contracts may result in the contractor losing their claim. These contractual requirements are the following:

Notice to the Owner

Most Differing Site Conditions clauses require that, The Written notice to the owner of a differing site condition is required. Which can give the owner the opportunity to determine the most cost effective manner in which to deal with the condition encountered and also to examine the situation to determine whether it is, or is not, a differing site condition. Thus, the failure to provide prompt written notice may result in the contractor not prevailing with their differing site condition claim.

Stop Work in the Affected Area

The intent of this requirement is to preserve the condition so that the owner can confirm the condition encountered. Contactors who fail to preserve the alleged differing conditions, allowing the owner to investigate and determine what was actually encountered, are almost guaranteed to lose their claim. They will be unable to prove what condition they actually encountered because they removed “the evidence”.

Allow the Owner Time to Investigate

This requires the contractor to allow the owner sufficient time to investigate the condition. Contractors who file notice of differing conditions but continue work are at serious risk of losing their claim. On the other hand, should the owner take a long period of time to investigate, they may become liable for an owner caused delay for the delayed investigation plus the damages arising from the differing site condition.

Mitigate Damages

Contractors must act reasonably in overcoming differing conditions in order to reduce the owner’s costs. Failure to mitigate damages will not result in the contractor losing their entitlement to the claim but may reduce the amount recovered.