Underground Construction - February 2018 - 30

2nd Of A Series
James Anspach | UESI

Underground Uncertainties in
Infrastructure Work
Editor's Note: This is part two of an exclusive four-part series outlining the risks of
modern underground utility infrastructure construction and rehabilitation work.

In Part 1, we introduced the concepts of underground uncertainties in infrastructure work. In
this installment, we will look specifically at how contract language
allocates the resolution of risks
of underground uncertainties of
existing conditions (geotechnical data, utilities, and Constituents of Concern) between the
engineer, contractor and project
owner.
A 1918 U.S. Supreme Court
case (U.S. v. Spearin) said that
when the government furnishes
project plans and specifications,
it has indicated that those documents are accurate and suitable
for their intended use. This ruling has been expanded to include
all project owners over the years.
That means that the project
owner pays the consequences for
errors or omissions, or reasonable doubt and lack of clarity, in
the documents, including underground conditions.
Therefore, a contract (between
owner-engineer and owner-constructor) attempts to set forth
the understanding of the parties
as to how much investigation
of existing conditions should be
performed, how that investigation's cost is compensated,
and what procedures and relief
should be expected when that
investigation failed to adequately
define the actual conditions that
were found during construction.
One of the major contractual
clauses that has evolved within
the owner-constructor contract
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FEBRUARY 2018 | UConOnline.com

is known as a differing site condition (DSC) clause. There are two
"types" of DSC clauses. Type I
relates to subsurface or latent
physical conditions differing
materially from those indicated
in the contract. Type II relates
to unknown physical conditions,
or of an unusual nature differing
materially from those ordinarily
encountered, and generally recognized as interfering in work of
the character provided for in the
contract.
A DSC is perhaps best summarized directly from case law language. "The purpose of the DSC
clause is to take at least some of
the gamble on subsurface conditions out of bidding. Bidders
need not weigh the cost and ease
of making their own borings
against the risk of encountering
an adverse subsurface, and they
need not consider how large of
a contingency should be added
to the bid to cover the risk. They
will have not windfalls or disasters. The government benefits
from more accurate bidding,
without inflation for risks which
may not eventuate. It pays for
difficult subsurface work only
when it is encountered and was
not indicated in the logs." Foster
Constr. C.A. & Williams Bros. Co.
v. United States, 193 Ct. Cl. 587,
435 F.2d 873 (1970).
Issues immediately come
to mind that have significant
impacts on the success (as measured in budget and time) of
the project. Who is going to be

contracted and paid to do the
subsurface investigations? Who
is going to develop the scope of
the investigations? What was the
final investigation scope that was
approved by the owner? How
much uncertainty is remaining in
the subsurface conditions after
the scope was executed? How
can that uncertainty be communicated?
The Engineers Joint Committee on Contract Documents
(EJCDC), a joint venture of
ASCE, ACEC and NSPE, along
with participation from more
than 20 other organizations,
publishes sample contract language that is fair and balanced
between all the parties for horizontal civil infrastructure development. The following paragraphs detail comprehensive
EJCDC language on how the
owner, engineer and contractor
can contractually allocate the
underground uncertainties
of conditions, utilities and
contaminants.
EJCDC Language:
differing subsurface or
physical conditions
Notice by contractor

If contractor believes that any
subsurface or physical condition
that is uncovered or revealed at
the site either: is of such a nature
as to establish that any technical data on which contractor
is entitled to rely as provided
is materially inaccurate; or is
of such a nature as to require a

change in the drawings or specifications; or differs materially
from that shown or indicated in
the contract documents; or is of
an unusual nature and differs
materially from conditions ordinarily encountered and generally
recognized as inherent in work
of the character provided for in
the contract documents; then
contractor shall, promptly after
becoming aware thereof and
before further disturbing the
subsurface or physical conditions or performing any work in
connection therewith (except in
an emergency), notify owner and
engineer in writing about such
condition. Contractor shall not
further disturb such condition or
perform any work in connection
therewith (except with respect
to an emergency) until receipt of
a written statement permitting
contractor to do so.
Engineer's review

After receipt of written notice as
required by the preceding paragraph, engineer will promptly
review the subsurface or physical
condition in question and:
* Determine the necessity of the
owner obtaining additional exploration or tests with respect
to the condition.
* Conclude whether the condition falls within any one or
more of the differing site condition categories.
* Obtain any pertinent cost or
schedule information from
contractor.

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Underground Construction - February 2018

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