QUESTION

As part of our scope on a project, we were required to install an augured casing pipe beneath a creek. During installation an unknown object was encountered so the work could not be completed as designed. Efforts were made to retrieve the auguring tools without success. The CA was notified and a claim was submitted for review, however the CA rejected the claim in its entirety. The CA's justification is as follows:

"It is my initial decision that the difficulty encountered by the Contractor in performing the creek undercrossing by the construction means was reasonably inferable from the examination of the Place of the Work. This is not a Concealed or Unknown Condition as defined by the Contract and so is not compensable under the terms of the Contract."

Additional information: No geotechnical report was provided for this project.

Our question is whether or not a buried obstruction that was encountered at the place of work, that has prevented our work from being completed as designed, which no information was provided to indicate such obstructions, should be considered a concealed or unknown condition.

COMMENT

11.1 A “Concealed or Unknown Condition” is a surface or subsurface physical condition encountered by the Contractor in the performance of the Work that: (1) occurs at the Place of the Work; and (2) materially affects the cost of, or the time required for, the performance of the Work; and (3) differs materially from conditions disclosed in the Contract Documents, or apparent in an examination of the Place of the Work (including “test pits” or other examinations, if any, that the Owner may have made available) or that were reasonably inferable from such sources.

According to GC 3.6.1, the Contract Administrator is the interpreter of the Contract documents in the first instance (not MMCD). MMCD cannot offer legal advice or an opinion on the merits of a dispute, except to point toward clauses in the GCs which might be helpful in approaching the dispute.

The contract requires that both parties follow the process outlined in GC 17. Section 3.5.4 of Volume I the “User Guide” Section 3 Page 6 of 54 addresses the special case where the design may be changed to reflect site conditions “differs materially from conditions disclosed in the contract documents”.