March/April 2021 - 87

GBR Legal Aspects
The GBR is prepared to provide a single
interpretation of anticipated subsurface
conditions, and serve as a tool in
administering the DSC clause in a
contract. Back in the '40s, the federal
government realized that it was paying
too much for construction contracts due
to bidder contingencies. A changed
conditions clause was created so that
contractors could be paid additional
compensation if contracting circumstances changed. Over time, this was
called a DSC clause. Today, the Federal
Acquisition Regulations contain a
recommended DSC clause whose
wording is framed around " indications
in the contract. " If a contractor encounters a materially different condition
from what was indicated in the contract,
it may receive additional compensation.
The GBR, within the context of the DSC
clause, is one way of presenting, with
transparency and efficiency, geotechnical indications to the contract. For the
GBR to serve this way, it must be
included as a contract document.
Some have questioned whether a
geotechnical data report (GDR) needs to
be included in contracts too. If a GBR is
silent on an item that is central to a
dispute, the parties should be able to
defer to GDR data and assess what a
bidder could have anticipated based on
that. For this reason, the GDR should
also be included in contracts.
Including a GBR in a contract
creates a specific relationship between
the owner and a prime contractor. A
prime will typically subcontract
specialty permanent and temporary
construction elements of a project to a
deep foundations subcontractor. During
bidding and after the award, any
specialty contractors must be able to
review and understand the geotechnical baseline statements and how they
are relevant to the risks they will
encounter while working. It is
imperative that the prime share with
them the GBR and any data reports.

GBR Statements and Details
The GBR developed by the owner's
project team sits as a legal contract
document, generally in order of priority
behind the general conditions, specifications and drawings. All of these documents need to be present and aligned to
be effective.
The basics of a GBR were described
above. Any baseline statement within a
GBR must be measurable to be effective.
While baseline statements should
accurately reflect the risks of ground
conditions to be encountered, baseline
statements do not necessarily have to be
factual. They can serve an owner as a
risk allocation tool for allocating and
shifting certain aspects of a project
among the parties. An example of this

The value of a GBR is that the risks are
described and identified, resulting in a
fair contract for both parties. A lesson
learned is that what is advantageous to
the designer may not benefit the
contractor. An example relates to ground
stiffness or hardness: A contractor will
generally be conservative in assuming
ground is on the soft side, while the pile
driver subcontractor will find it a disadvantage to underestimate the strength
and driving/drilling resistance to piles.
GBRs were initially conceived and
used with the design-bid-build contract
delivery mechanism. The changing
contract delivery methods currently
being employed, such as design-build,
public-private partnerships, and early
contractor involvement, impact GBR

When limited site exploration and characterization efforts
occur ... stakeholders will be unable to sufficiently
identify and quantify subsurface conditions that will
directly impact excavation and construction costs.
would be wording that no excavated
material shall be reused, or that only
select explorations will be valid for
defining a DSC adjacent to a structure. In
addition, a GBR needs to be developed to:
*

Be consistent with, based on and in
alignment with a well-developed
geotechnical exploration program,
relevant history from relevant
nearby projects, and available
geotechnical reference material.

Consider potential means and
methods that will be used during
construction. This may require
added development steps in the
case of design-build or other
situations where the methods
involve variability or options.

Have the items that are baselined be
identifiable and measurable, and the
methods of measurement identified
in the GBR and specifications.

Avoid unfairly shifting risk to a
contractor.

text and execution. A specific issue is
how much site investigation an owner
should undertake when applying these
alternative delivery methods. Whether
the selected project delivery method is
design-bid-build or some other
alternative, a thorough site investigation
should occur to support all aspects of the
design and construction. For designbuild delivery, the owner may allow
added exploration by the design-build
team post-award. Exploration programs
are best planned and implemented in
stages, and in the case of design-build
delivery, done in collaboration with the
design-build team.
While the underlying assumptions
and use of GBRs in alternative delivery
methods are the same, the owner bears
an additional responsibility of how to
allocate the risks, clearly understand
and provide clarity on roles and
responsibility, and pay closer attention
to integrating the GBR into contracts.

DEEP FOUNDATIONS * MAR/APR 2021 * 87

March/April 2021

Table of Contents for the Digital Edition of March/April 2021