DIFFERING SITE CONDITIONS
Shifting the Risk
should have expected the condition after a relatively simple
jobsite inspection. Faithful execution of the policy underlying
the DSC clause requires that the promise in the changed conditions clause not be exacerbated by an expansive concept of
the duty of bidders to investigate the site.
In Zontelli & Sons, Inc. v. City of Nashwauk, 9 for example,
the owner provided no specific information about subsurface
conditions other than estimates for granular backfill and
The contractor performed a pre-bid site investigation, but
nothing in that investigation revealed that the quantities
of both items might overrun by almost 400%. The court
agreed with the reasonableness of the contractor’s reliance
on the estimates as indications of subsurface conditions.
The contractor’s claim will fail if a reasonable site investigation would have disclosed the disputed condition. In one
case, for example, the contractor’s claim for subsurface rock
was denied because, if the contractor had inspected the
site, he would have seen visible rock outcroppings. 10
The scope of the contractor’s required pre-bid investigation
depends in part upon the terms of the particular site investigation clause. Even expansive clauses, however, have been
consistently interpreted to require only an investigation that
is reasonable under the circumstances.
What is reasonable depends on a number of such factors as
expense, time and site restrictions, topography, custom and
practice of local contractors, whether the disputed condition was indicated in the contract documents or readily
observable, and the reliability and thoroughness of the data
provided by the owner and disclosed to the contractor.
A DSC clause narrows the scope of the bidder’s duty to
independently investigate the site. The U.S. Court of Claims
noted that “[i]n the cases arising under the modern changed
conditions clause, caution continues to be observed that
the duty to make an inspection of the site does not negate
the changed conditions clause by putting the contractor
at peril to discover hidden subsurface conditions or those
beyond the limits of an inspection appropriate to the time
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