Unmarked Fiber-Optic Conduit and Late Claim Notice
During excavation for a foundation, the contractor's hoe operator strikes an unmarked 4-inch fiber-optic conduit at elevation -6.5 ft. The drawings show a telephone duct at -8.0 ft and note verify all utilities. The contractor called the one-call service 10 days earlier; the utility owner marked the area but missed the conduit. The contractor's superintendent told the CA's field inspector about the strike the same day. The contract's Supplementary Conditions require written notice of any claim within 7 calendar days after the event; the contractor sent written notice on day 15. The utility owner claims $62,000 in repair costs; the contractor claims $88,000 for repair, standby, and 8 days of delay, and the owner has notified the contractor of liquidated damages. The CA's daily report records the verbal notice and the inspector's contemporaneous note. No changed-condition clause was deleted, and the drawings were issued for construction.
1. Does the late written notice bar the contractor's claim?
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The written notice is late under the Supplementary Conditions, which require written notice within 7 calendar days. Strict notice provisions can be conditions precedent to a claim, but the result is not automatic. The contractor gave same-day verbal notice to the CA's field inspector, and the daily report records it. That gives the owner actual knowledge and may defeat a claim of prejudice, depending on the contract's notice clause and applicable law.
The CA should not decide the legal waiver question alone. The CA should report the facts to the owner and the architect, preserve the daily report and the one-call ticket, and recommend that the owner reserve rights rather than deny solely on timing. If the contract says no waiver except by written instrument, the inspector's oral notice did not amend the contract, but it is still evidence relevant to prejudice and estoppel.
2. Assuming notice is not a bar, is this a differing site condition, and how should repair costs and delay be allocated?
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Assuming notice is not a bar, the claim should be analyzed as a possible differing site condition. The drawings showed a telephone duct at -8.0 ft; the fiber-optic conduit was at -6.5 ft and unmarked. That is a physical condition differing materially from the contract documents. But the contractor also had a one-call ticket and the utility owner had marked the area; the contractor's excavation near marked utilities must be careful, often hand-dug within the tolerance zone.
Repair cost allocation should follow fault: if the utility owner's locating error caused the miss, the utility owner may bear the repair; if the contractor excavated carelessly or outside the markings, the contractor may bear it. The owner's exposure is for the differing condition's time and cost impact, not necessarily the utility repair itself. Delay should be analyzed with a schedule fragment; liquidated damages should apply only to contractor-caused delay.
3. What should the CA do now?
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The CA should issue a field report describing the strike, elevation, utility markings, one-call ticket number, and the contractor's notice. Request the contractor's written claim with cost breakdown, schedule analysis, and the utility owner's repair invoice. Notify the owner that denying the claim solely for late notice is risky and that a reservation-of-rights letter is preferable.
Evaluate whether the contractor mitigated by stopping work and protecting the conduit. Do not direct the contractor to pay or not pay the utility; that is a contractual and insurance matter. Track the delay separately from the repair, and do not certify delay costs or liquidated damages until entitlement and causation are resolved.