TABLE OF CONTENTS As discussed in Chap. 13, differing site conditions clauses are contract clauses used to establish which party bears the risk of certain unanticipated site con-ditions. [89] Parties should not assume that because a design-builder contracts to both design and construct the project, the design-builder will automatically bear the risk of differing site conditions. In fact, many owners prefer to retain this risk, just as they would in the traditional contracting process. The owner will then only pay for the actual cost of an actual unanticipated condition, rather than the contingency included in the contractor s bid for a problem that may never arise.
Combined with the issue of differing site conditions are two other legal principles that can affect responsibility for unexpected site conditions: (1) a contractor who makes a claim for differing site conditions will be bound to what a reasonable site investigation would reveal, [90] and (2) the owner has a duty to disclose information that could be relevant to the contractor s performance, under what is commonly known as the Helene Curtis doctrine. [91] All of these issues were addressed within the context of a design-build project in a case before the Armed Services Board of Contract Appeals, Pitt Des Moines, Inc. [92]
In Pitt Des Moines, the design-build contractor entered into a firm fixed-price contract with the Government to design, develop, fabricate, and install an approximately 900,000-gal large acoustical tank in an existing building, known as Building 5, at the...
