Differing Site Conditions Part II

By -
A contract that places the risk of differing site conditions on the contractor can still be profitable, but all of the bidders should be aware of the risks associated with the project.  If a bidder is concerned that the owner intends to place the risk of unforeseen conditions on the contractor, then the issue should be raised with the owner for clarification prior to the bid, e.g. at the pre-bid conference.  If the bid documents do not contain a differing site conditions clause, and/or changes clause, the owner should be asked whether the omission was intentional.  In this manner, even if the absence of the clauses was intentional, at least all of the bidders will be alerted to the increased risk associated with the contract, and all will be on equal footing.  It would be patently unfair for an owner to intentionally take advantage of the bid process by encouraging a bidder to submit a low price under the mistaken belief that the contract will allow an equitable adjustment if a differing site condition is encountered, while the other bidders included a risk contingency factor absent from the low bid.  Bidders who fail to understand the significance of a differing site conditions clause, a changes clause, (or more precisely the significance if the clauses are absent from their contract) are at great risk, as the “successful” bidder may not be able to obtain an equitable adjustment if a differing site condition is encountered.



Trenton H. Cotney
Board Certified in Construction Law
Trent Cotney, P.A.
1207 N Franklin St, Ste 222
Tampa, FL 33602
(813) 579-3278

Location: 100 S Ashley Dr., Suite 1300, Tampa, FL 33602

Comments

Post a Comment

Popular posts from this blog

The Dotted Line: When Contractors Can Walk Off the Job

By -
When general contractors or subcontractors sign on to construction projects, they usually start off believing everything will run smoothly. But, during the course of the work, issues sometimes arise that force all parties to go running back to their contracts in order to evaluate their options. One of those options for construction companies is to simply stop work, but contractors need to take care when making such a big decision. “Stopping work and ultimately terminating the contract is one of the most radical things you can do,” said Joseph McManus Jr., attorney and shareholder at law firm Carlton Fields.   Luckily, most of the circumstances under which contractors are clearly entitled to stop work are included in the most popular standard forms of contracts. Nonpayment The most common reason that contractors find it necessary to stop work, McManus said, is that they haven’t been paid for approved invoices. In that scenario, he said, contractors have the right to
Read more

"Mass-timber" Sees Greater Use in Roofing and Construction Projects in Europe

By -
Image
The use of "mass-timber," or prefabricated engineered wood components is becoming more common in construction and roofing applications in Europe. In projects such as the galleria roof of a central city building in Surrey, it helps meet demand for wood structures to add visual appeal. From NRCA Trenton H. Cotney Florida Bar Certified Construction Lawyer Trent Cotney, P.A. 407 N. Howard Avenue Suite 100 Tampa, FL 33606 www.trentcotney.com
Read more