Question 1

Dispute between CA and Contractor regarding claim for Concealed or Unknown Condition

Accepted Answer

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:

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”.

Question 2

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

Accepted Answer

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”:

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.

Dispute between CA and Contractor regarding claim for Concealed or Unknown Condition

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

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