Differing site conditions, also commonly known as changed conditions or concealed conditions, occur when conditions at a construction site differ materially from those that existed at the time of contracting or as represented in the contract documents. Some of the more common types of claims involve subsurface conditions, such as unforeseen underground obstructions, rock formation, or water conditions. Claims for differing site conditions can often result in litigation or arbitration if liability is in dispute or damages are contested.
Common Issues Encountered Relative to Differing Site Conditions Litigation and Arbitration
A variety of issues on a construction project can lead to a claim for differing site conditions. Therefore, it is important to first review the contract to ascertain if certain parties assumed the risk of differing site conditions. In addition, construction contracts may provide entitlement to an equitable adjustment for certain unforeseeable site conditions. Claims for differing site conditions typically consider the following issues:
The condition existed prior to executing the contract.
The condition is physical and is at the construction site.
The condition differed materially from the conditions in the contract documents.
The contractor’s interpretation of the contract documents was reasonable.
The contractor relied upon the contract documents and the conditions encountered at the site were unforseeable.
The contractor suffered damages due to the differing site conditions.
Typically, construction contract documents require contractors to inspect the project site prior to bidding to ensure an understanding of the existing site conditions. However, the site visit often occurs while the facility is operating, and access for detailed measurements or inspections may not be permitted or possible for safety and security reasons. In such cases, the site visit is general in nature. Additionally, there are often conditions that cannot be determined by an initial site inspection, such as when the owner provides a geological/soil survey that turns out to be incorrect, or a situation where there was no reasonable way for either party to know what hidden conditions existed.
Assisting with Differing Site Conditions Litigation and Arbitration
Interface Consulting assists with differing site conditions-related litigation and arbitration cases by providing independent expert analysis and opinions of the issues and damages on behalf of owners, contractors, architects, designers, or other parties. Analyzing a differing site conditions claim typically involves reviewing the conditions as represented in the bid and contract documents and comparing them to conditions actually encountered at the site. In addition, a successful claim should consider the contract language regarding differing site conditions as well as the six (6) conditions listed above.
Interface Consulting can serve in either a consulting expert or testifying expert role with regard to litigation and arbitration involving differing site condition claims. As a consulting expert, Interface Consulting works with attorneys and project personnel to provide preliminary independent analysis prior to trial or arbitration. As a testifying expert, Interface Consulting can provide the necessary expert analysis, comprehensive written reports as required by the particular dispute forum, testify in court or arbitration, and provide additional support services as needed.
Interface Consulting’s construction experts provide the following services relative to differing site conditions-related litigation and arbitration:
Expert report and analysis
Site inspection and investigation
Drawing and survey analysis
Delay and disruption analysis
Trial or arbitration graphics and demonstrative exhibits