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10/06/2011

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Considering this is a soils condition I would suspect that the either the specifications call for testing excavations for adequate soil bearing pressure or the Owner provides them upon request. For thier own protection the contractor should always check soils for "unforseen" conditions. In general these situations are generally compensated by change Orders.

when we see things that we believe are problematical, we notify, in writing. state the problem the potential effect on our work and, if we have one a solution. Of course, this situation inevitably leads to an extra charge. How could have incorporated something in our bid if we didn't know about it?
In our notification we give a time frame even if it's only a day- for a reasons and state that unless we are told otherwise, any problem is not our responsibility. The owner/GC will usually ripe about it, but over the years 35+ I've found that it's better to get things out on the table as soon as you can.

Two words: Spearin Doctrine.

If the contractor constructs the project in accordance with the contract documents, there is an implied warranty that the project will perform satisfactorily, and that the contractor is not liable to the owner for loss or damage due to defects in the design.

If the contractor has no knowledge of a condition that would affect the final outcome of a construction project, and the condition would not be obvious without investigation, then the contractor should not be liable.

If the differing conditins were obvious, then the contractor does have an obligation to inform the owner via the architect, depending on the provisions in the contract documents.

If using Amererican Institute of Architecture (AIA) contracts, they actually have a stipulation in them that states that any changes between existing conditions and assumed conditions must be brought to the attention of the architect / engineer of record.

In a situation where the soil is not compliant, it is hard to say if the contractor was skilled, experienced or knowledgable enough to recongize a soil problem. If bore samples say the soil is fine, the contract can rely on this information unless they suspect a problem.

A builder who continues working when they know there is a problem is either a criminal (knows they will be able to charge to redo or repair the work) or a fool; risks being charged lost time and materials for correcting the situation. For the protection of all, as soon as a question or problem comes up the contractor should notifiy the Architect. The Architect can then review options with the Owner to issue a change order, supplemental instruction or hire an expert to confirm conditions will work.

Should there be any condition that materially differs from those represented in the contract documents, the experienced contractor would give notice to the owner and the AE of record of the condition. Unless stated otherwise in the contract documents, the contractor’s responsibility normally begins and ends with the means and methods of delivering the contract requirements. However, some contract documents are fraught with indemnity and liability clauses. Contract clauses are part of the inherent risk in construction contracting. The savvy contractor begins the bid process with his attorney reviewng the T&C's of the contract. After award, when situations arise where the conditions materially differ from those bid, the preparation of the change order begins moments after notification of the owner and AE.

I believe the contractor should alert both the owner and architect. Most contracts state that the contractor should notify the owner and architect of any site conditions that are questionable and may require further investigation, failure to do so would make the contractor responsible for any failure related to the site condition in question. Most contractors should welcome an architect, engineer or owner to review such situations and giving them direction on how to proceed, thereby releaving them of some liability.

Potential liability or responsibility in the eyes of a court are always issues that everyone in the design and construction industry needs to be concerned about. In my opinion a contractor should always bring any unfrozen conditions to the attention of the owner and/or design team. As a design professional I would welcome a dialog about issues that were not know during the design. If the contractor brings up the issue in a writing and the owner and/or design team does not address it then that at least "deflects" a lot of the potential liability from the contractor in the eyes of a judge. Likewise, if the design team learns of an unforeseen issue during construction they should make the appropriate suggestions about how to remedy it. We can't force an owner do something or necessarily pay for a change to the initial design but it is our professional obligation as the experts that the owner has hired to bring up any significant issues and suggest appropriate solutions.

Shouldn't this be the responsibility of the soils engineer, if one was hired on the project? Otherwise, I think that it's not the responsibility of the contractor but the good ones will catch it and inform their clients and/or the architect/engineers about the concern and ask how to proceed.

Don't AIA General Conditions include a clause requiring the Contractor to take on certain responsibilities? (One of those, I'm sure, is notifying the Designer & Owner of variations from the conditions shown on the construction docs...)

I concur with all aforementioned contractor responsibilities to notify of unforeseen site conditions. The engineer of record has a due diligence requirement to provide reasonable verification of current site conditions affecting the design and as such is liable for the design's integrity within a normal standard of care. If no representations exist within the contract documents, it is for this very purpose that notification by the contractor via an RFI be made so that the engineer of record can address those issues. As in everything in construction, the earlier the better.

I believe that the owner's representative should deal with issues like this.most of the time they are the design team,if not it is the owner's responsibility to hire a qualified firm to inspect and report any deviations from the design documents.Some problems are not as obvious as the one mentioned.Here in Alaska we could have a similar situation that is not nearly as obvious such as silt content of the material and the depth of ground water.If for example the soils contain more silt than indicated on the plans and the ground water is higher than shown on the plans.these differing site conditions are not as obvious as the one you cited.Under these conditions I do not believe the contractor has any liability because he can not be expected to be an expert in visual soils classifications or investigate the ground water level present during construction.

We depend too much on having the legal system tell us what is right or wrong. Nevertheless, there's usually language in the contract that states that the contractor should point out discrepancies and that holds the contractor liable for carrying out work he knows to be incorrect.

After all these years this is still a controversy? If a reasonable person could determine that there was a problem, a judge would determine that the person would have notified the chain of command. Most of these things come up after failure and the design professional is trying to get out from under responsibility for the failure. So who do they always blame, the crooked contractor of course. Many design professionals discourage the contractor reporting unforseen conditions by making it "going through hell backwards" to have a change order approved. Makes the designer look bad if he did not forsee the circumstances so he tries to shove it up the contractor. It is the same old story that has been going on for hundreds of years and no matter how many three letter acronyms of management are devised, that is the way it always will be. I have been at this for forty years or more and it has not changed one bit.

The contractor is not usually responsible for design issues, or even building code issues, but he is responsible to report errors, omissions and inconsistencies that he becomes aware of. To knowingly fail to do so is usually a breach of contract (AIA contracts). It is also expected that the contractor will act on behalf of his client, the owner, to protect the owner if it is in the contractor's power to do so. Nobody can really know all of what's underground, or behind a wall until it is opened up. Usually, the contractor is the first one to observe such hidden conditions, and is required to report anything that might be harmful or inconsistent with the contract documents.
In the case cited in the article, the Owner should have had onsite inspection by a testing agency or soils engineer to verify soil conditions. This is usually required in most jurisdictions via Special Inspections. Some Owners like to save dollars by eliminating adequate onsite review of the work. Sometimes, the gamble doesn't pay off.

Getting back to the original question, I really don't see how questioning a design could make the contractor liable.

Again, we're becoming stagnant and petrified of even doing what is right because everything has become so litigious.

IF any condition differs or new information is exposed during demolition, standard notes require the contractor to notify the architect. Since opinions differ, and some contractors like to discredit the design professional, I believe that is the professional courtesy. Certainly if I as an architect see something the Contractor is doing that is wrong, I tell him directly. The owner gets in the picture if the architect and contractor cannot agree on the course of action. Of course, if extra compensation is needed, the Owner must be involved as soon as that is known.

It is good business to bring the issue before the owner if nothing else. He is the client paying the bills. He expects a duty by his contractor to protect him. Let the owner fight with the architect/engineer. He is paying them. The unforeseen condition will not disappear unless fixed. It is always cheaper in the beginning.

My view is that the Contractor does not assume liability for the Design if he questions its adequacy. It is prudent for him to do so, as it insulates him from potential liability in the case of design failure. I agree that there is a Contractor responsibility to notify differing site conditions from those anticipated by the Design, but this is based on some assumptions: that the Contractor was adequately experienced in the type of Construction, and that due dilignece was carried out by the Architect in the Design. The court case cited does not give much detail about how the soil conditons impacted the design, the limitations of the design, or as another commenter points out, whether soil testing was carried out. One can only assume that these issues were addressed and that judgement was based on a fair evaluation of evidence. If for example, the Design was dependent on certain soil conditions, testing should have been carried out. If the Design proceeded on the basis of testing then due dilignece was met. If on the other hand, saturated soil could reasonably have been expected on the site and no testing was carried out, due diligence on the part of the Architect could have been at fault and the Design may have been inadequate. If the saturation was caused by another aspect of the Design, this would also point to Design deficiency. If there were no issues with the design, and the satuarated condition was found during Construction, then I would say the Contractor's duty to notify is pretty clear, and failure to do so is negligent. It is not clear on what basis the Owner argued that he should have been warned, but if the court ruled the Contractor had no way of knowing, I would hope that none of the above was the issue and it almost seems like there may have been an extraneous cause for the saturation, and that it may not have even been evident at the time of Construction...

Does anyone have the case site for this lawsuit? I would be interested in reading in. Thanks

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