Rock, Water, and a Late Notice
You are the contractor's project manager on a $9.4M lump-sum wastewater pump station. The owner-furnished geotechnical report, listed in the specifications and incorporated by reference, shows residual soil to elevation 12 ft and groundwater at 18 ft. Excavation exposes weathered rock at elevation 16 ft across roughly 60% of the footprint and groundwater at 14 ft. The contract's differing-site-conditions clause requires written notice within 7 days of discovery; your notice went out on day 9. The owner's engineer argues the geotech report was "informational only." Meanwhile your superintendent already removed 400 CY of rock after the owner's inspector said "keep going." Excavation is on the critical path with 5 days of float.
1. Is the claim dead because notice was two days late?
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Not automatically, but you are now arguing from a weaker position and must stop adding to the problem.
Notice clauses are usually conditions precedent, yet the consequence depends on the exact wording and on prejudice. Where the owner had actual knowledge of the condition and was not harmed by the two-day delay - here the owner's inspector stood in the excavation and told you to continue - many tribunals will not bar relief. Do not build the case on that hope.
Act today:
- send a supplemental written notice covering both the rock and the groundwater, expressly reserving rights;
- stop treating verbal remarks as authorization; require written direction or a field order;
- jointly survey and photograph the rock surface and record groundwater elevations before any backfill, with the owner's representative signing;
- confirm delivery records for the day-9 notice;
- state in writing that you continue work under protest to mitigate.
A short late notice is survivable. A late notice followed by silence and undocumented conditions is not.
2. How do you frame the entitlement analysis - what must you actually prove?
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This is a Type I differing site condition: the actual conditions differ materially from those indicated in the contract documents. The fight is over the word "indicated."
Arguments in your favour: the geotechnical report is listed in the specifications and incorporated by reference, and the owner furnished it - that is a representation bidders were entitled to price against, not a courtesy.
Arguments against: the "informational only" disclaimer, any exculpatory site-conditions language elsewhere in the contract, and whether the order of precedence makes the specification reference or the disclaimer controlling. Read both before you write anything.
Then prove the remaining elements: the conditions were not reasonably foreseeable (rock 4 ft above the indicated profile and groundwater 4 ft higher than stated is a material departure, not a normal variance); you gave notice and incurred cost; and a mandatory site visit does not transfer subsurface risk.
Get the design engineer's written interpretation of the indicated profile if you can. A one-page technical concession is worth more than a hundred pages of argument.
3. How do you price and document the change?
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Follow the contract's change mechanics rather than inventing a basis.
- Use applicable contract unit rates where they exist.
- Where none exist (rock excavation), build a new rate from measured quantities, equipment hours, and actual productivity, with backup behind every line.
- Use T&M only if directed in writing; a unilateral T&M ticket invites a dispute over every hour.
- Keep direct cost separate from time: excavation, dewatering, extended general conditions, and any winter or sequencing impact priced distinctly.
- Apply the contractual markup only to eligible categories, and check whether markup stacks on subcontractor markups.
The 400 CY already removed on the inspector's verbal go-ahead is the weak link in the file. Argue ratification - the owner's representative observed the work and did not stop it - but get written confirmation of that direction at the earliest opportunity, before memories change.
Submit the priced proposal inside the contract period and reserve rights on the unquantified time impact rather than guessing at a number you cannot support.