Will A Duty To Inspect The Site Adversely Affect A Differing Site Conditions Claim?

Last month, we discussed why utility contractors should insist on the inclusion of a differing site (changed) conditions ("DSC") clause in their contracts.  A DSC clause allocates to the owner the risk that actual physical conditions at the site are materially different from the expected physical conditions at the site, along with establishing a procedure for adjusting the contract price and time for DSCs.  Absent a properly drafted DSC clause, the doctrine of sanctity of contract normally places the risk on the contractor if the work is more difficult, costly, or time consuming than expected due to a DSC.

DSCs fall into two categories: Type I, which are physical conditions encountered during the performance of the work that differ materially from those indicated in the contract documents, and Type II, which are unknown physical conditions encountered during the performance of the work  that differ materially from the conditions normally encountered when performing