What To Do With A “Different” Differing Site Condition
Most contractors are familiar with the common types of differing site conditions: bad soils, more rock than expected. Many have experienced non-soil related conditions in renovations such as such as asbestos floor tile or ancient wiring. But what if the differing site condition you encounter is human remains, a burial ground or other archeological site?
Your obligations and rights will be determined by two primary sources -- your contract and the applicable laws. Many standard industry forms address this issue. The 2007 version of the A201, for example, requires the contractor to immediately stop work and notify the Owner. Work is not to re-start in the affected area until instructed by the Owner. Contractors are not entitled to an automatic increase in contract price or time in these circumstances, however, and must seek such adjustments through the claim process.
In addition, various federal, state and/or local laws may subject you to criminal liability if you do not take the proper steps. It is important, therefore, to familiarize yourself with any such applicable statutes or regulations before the project begins.
If you do encounter these conditions, the key is to react quickly:
- Stop work and secure the area
- Immediately notify the construction team and authorities (if applicable)
- Investigate all environmental issues
- Resume work only after receiving proper authorization
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Attorney Spotlight
C. Michael Shull, III focuses his practice on construction law and litigation. Michael's client representations range from casinos and ENR Top 400 contractors to design firms and subcontractors.