Different Site Condition Claims in Construction
Jacksonville, Florida, law firm Regan Atwood Managing Partner and attorney Jeff Regan explains the additional different site condition claims disputed in Florida by construction contractors and construction sub-contractors on a project. Regan Atwood handles high stakes and complex construction law disputes for clients across the state.
Different in the Area Geographically
The other type of site condition claim is one that is different in the area geographically than would be expected. For example, in Florida, you’ve got a low ground water table.
Problems With Low Ground Water
And, so when you have contractors coming into Florida for the first time that are not used to doing work in Florida, they sometimes have a problem, because they know they’re going to have to dig out an area for a foundation, for a building to put in and you’ve got to stabilize it and everything else if you don’t want the building to start to sink or settle when you put it in.
And they don’t realize that they’re going to hit water, when they’re two feet underground, you almost virtually do always in Florida, except when you get out into certain areas of the panhandle from Tallahassee on, that’s a little hillier, and then you may not hit water at two feet down.
Change the Order
Well, those guys will come in and they’ll hit water, and they’ll want to change the order, because in order to you have to control water, what are you going to do with it when it comes in, all this ground water?
Well, there’s a lot of different ways you can do it, but one way you do it is you well-point it. You literally, you’re putting in a well that pumps it out, and you pump it up and out into another retaining area and you dry the area out, so you can put your concrete footers in and everything else and set your foundations on it. And then it can’t really come into that foundation too much. It can’t if it’s concrete porous, but you’re solid, you’re on a solid underpinning on it, so you’re fine.
Well, if you’re an out-of-state contractor who’s just moved in to start doing work here, you may encounter that problem and it’s going to cost you a lot more money to de-water it. So, you would win, that it’s a differing site condition, because everybody would expect in the geographical area of Florida where you’re near the water in you’re in a flat state for the most part, water is about two feet down.
In some areas it’s only eight to 10 inches down. But if you are in another situation, for example, once where I had a client putting in on a Navy base, a wastewater treatment system that was going to serve the base and the housing on the base. And they’re from Florida, so they put it in their price that they were going to well-point and then go that method and factor that into their pricing to do the job that they got.
And they well-pointed it, and they set it up. And lo and behold, water kept coming in and water kept coming in and water kept coming in, and they couldn’t get the pumps going fast enough.
It just overwhelmed the entire project and they made a claim to the Navy. “Hey, we’ve got to have a change order, there’s something going on here and we got to figure out what’s going on.”
And the Navy said, “Nothing doing, you know we’re in Florida, you know you’re going to encounter water here, that’s why we put well-pointing in.”
And they said, “No, we refuse to give it.”
So we hired a geo-technical engineer and we did some of our own borings in the area, went out. And because the sewers weren’t any different than what their borings show, but we wanted to explore, further find out where’s all this water coming from? Especially since we’re doing this on the Navy base, right by the saltwater ocean.
And they checked out the salinity of water coming in thinking, this must be saltwater, right? It was all fresh water. They said, “Where’s it coming from?”
So we got out there and they did the research on it, started doing their explorations and guess what they found? It was an underground spring.
Well, that’s a differing site condition, because no one would have expected to encounter an underground spring that was not part of the actual overall aquifer.
And they had to find a way to excavate around this and divert an underground spring in order to stop the water from coming in. That was a huge cost.
The Navy finally relented when they got all of that evidence and agreed to pay for it.