QUESTION

I would like some clarification on the General Conditions of a MMCD contract as they relate to delay claims for encountering concealed or unknown conditions. Specifically the time period from encountering the condition to the Contractor making the decision to move to another area of the job site and the lost production time in mobilizing / de-mobilizing. The remediation of the condition I fully understand is a Change and can be dealt with accordingly.

My question is, does encountering a concealed condition meet the intent of GC 13.1 Delay by Owner or GC 13.5 Delays for Additional Instructions?

My interpretation would be a concealed condition meets both but if so, which one governs for payment of delay costs?

COMMENT

GC 11.1.1 gives three criteria for “Concealed or Unknown Condition”: (1) occurs at the place of the work; (2) materially affects the cost and time of the work; (3)-differs materially from conditions disclosed in the Contract Documents ; -not apparent from an examination of the work or from material supplied by the Owner; -not inferable from the Contract Documents or from an examination of the Work site or from materials supplied by the Owner

GC 13.1.1 says that a delay to the Contractor by the Owner must be caused by a specific act or omission by the CA the Owner, employees and agents. GC 13.5.1 says that any delay claim for additional instructions requires written notice from the Contractor, and gives the CA five days to respond. Encountering a Concealed or Unknown Condition does not constitute an error of omission on the part of the CA or Owner unless, potentially, the Contract Documents did not disclose Known (not unknown) data indicating the condition, and this was not disclosed to the Contractor. Similarly, a delay for additional instructions might arise from encountering Concealed or Unknown Conditions, but written notice and a five day response time are afforded the CA. So…it depends whether there was an Act or omission by the Owner regarding knowledge of the Unknown concealed condition; and whether the CA responded within the time limits to any written request for Additional instructions.