In Song & Song Corp. v. Fine Art Const. Co., LLC, W2011-01708-COA-R3CV, 2012 WL 2146313 (Tenn. Ct. App. June 14, 2012) - a contractor encountered an alleged differing site condition when its work was stopped as a result of the previous contractor’s failure to install fire dampers inside the ductwork. Like the Song decision shows, a "Type I" differing site condition need not always involve project site’s geotechnical conditions. Something as simple as a previous contractor’s failure to build the preceding work in accordance with the applicable building codes, which in turn prevents or hampers another contractor’s performance, could be considered a differing site condition entitling that contractor to an adjustment in the contract price. Other examples could be a contractor finding that a stream bubbled up where none was before causing additional erosion and sediment management plans to be added. If a dispute arises over whether the contractor is entitled to additional money as a result of a condition that was encountered on the project, the court will resolve the issue by scrutinizing the contract documents. If those documents show that the encountered site conditions were concealed or unforeseeable, as they were in this case, a contractor’s differing site condition claim may well succeed.
Posted on: Sun, 23 Jun 2013 19:26:51 +0000
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