This post is regarding whether site information should be included in the Bidding Documents or the construction Contract Documents. While many there are many types of information that characterize the Site of the Work, perhaps the most common is subsurface data and geotechnical reports, which are the primary focus of this post. Similar principals apply to other types of site data, whether information on a Constituent of Concern (and a Hazardous Environmental Condition), test results such as non-destructive thickness measurements, inspections of an underwater diving subcontractor performed during design, and record drawings of existing conditions at the Site.
A separate post on this blog has covered the basic definitions of what comprises the “Contract Documents” and “Bidding Documents”; such discussion is an essential foundation for a full appreciation of the points presented in this post on including subsurface data in construction Bidding Documents.
Some owners, engineers, and architects have different practices when it comes to how subsurface data, such as soil boring logs, test pit data, and geotechnical engineering reports prepared prior to bidding are disseminated to potential Bidders and to the Contractor. Many owners and design professionals do include subsurface data in the Bidding Documents; this appears to be even further encouraged because CSI MasterFormat even includes a place for it in the Project Manual: “00 31 31, Geophysical Data”, which MasterFormat says “Includes: reports from geophysical investigations that are made available to bidders or proposers.” This immediately follows MasterFormat’s “00 31 26, Existing Hazardous Materials Information”.
EJCDC’s preferred practice, as reflected in EJCDC® C-700, Standard General Conditions of the Construction Contract (2013) and EJCDC® C-800, Guide to the Preparation of Supplementary Conditions (2013), is that subsurface data is “technical data” only, on which the Bidder and Contractor may rely only to a limited extent. See EJCDC® C-700 (2013) Paragraphs 1.01.A.44 (“Technical Data”) and 5.03, and EJCDC® C-800 (2013) Paragraph SC-5.03.
Why shouldn’t subsurface data be included in the Bidding Documents or the Contract Documents? Some reasons include:
- Subsurface data may be incomplete (i.e., only a limited number of borings are obtained, and conditions may vary between bore holes).
- Certain conditions represented in boring logs, particularly groundwater levels, may be subject to change between the time that the boring data was obtained and the construction phase of the project.
- The purpose of subsurface data collected during the feasibility study phase is for characterizing the site, and when collected during the design phase is intended for design. Such data may well be insufficient for the Contractor’s purpose of determining cost, and means, methods, techniques, and sequences of construction.
- Geotechnical engineers’ conclusions on data obtained from soil borings are opinions, not necessarily fact, and may vary from geotechnical engineer to geotechnical engineer. Furthermore, the opinions and recommendations presented in the geotechnical engineer’s report were developed only for that particular client (i.e., the Owner or the Engineer, depending on who hired the geotechnical engineer), not for the benefit of Bidders and the Contractor.
- Subsurface data or geotechnical reports that do not accurately represent the actual conditions encountered, but that are part of the Contract Documents, may be used by the Contractor to support a Claim, based on the Spearin Doctrine. The Spearin Doctrine arose from a landmark 1916 case in which the court found that a project owner’s issuance of construction documents represented an implied warranty that the construction documents could be relied upon by the Contractor. Thus, based on the Spearin Doctrine, the Contractor and Bidders are entitled to rely upon the information contained in and representations made in the Contract Documents.
Thus, if subsurface data or geotechnical engineering reports are part of the Bidding Documents or the Contract Documents and conditions at the Site are found to be different from those represented in the information included in the Bidding Documents or Contract Documents, the likelihood of the Contractor having grounds to file a Claim (for either additional time or additional compensation, or both) is likely to increase. To summarize, including subsurface data in the Bidding Documents or Contract Documents represents the Owner assuming a disproportionately high share of the risk for interpreting the results of subsurface investigations.
Instead of including subsurface data in the Bidding Documents orContract Documents, it—together with other site information, such as reports characterizing the Site, record drawings of existing conditions at the Site, and other information if available—should be available to Bidders and the Contractor. Specifically, such sources of site information should be listed in the Supplementary Conditions (see EJCDC® C-800 for sample language) along with information on how Bidders or the Contractor may obtain or review such information. For example, instead of binding subsurface data and geotechnical engineering reports into the Project Manual, make it available to Bidders as a separately-bound set of information.
EJCDC® C-700 requires the Owner and Engineer to make available toprospective Bidders and the Contractor whatever information is available on subsurface conditions and other site information (without, however, guaranteeing accuracy or completeness). The language of Paragraph 5.03 of EJCDC® C-700 (2013) and, more-specifically, the language of the Contractor’s representations in EJCDC® C-520 and EJCDC® C-525 (Owner-Contractor Agreement form), places the burden on the Contractor to determine all that can reasonably be expected to find out about such conditions prior to submitting the Bid, and makes the Bidder and Contractor responsible for having failed to do so. EJCDC regards this as a fair allocation of risk among the parties to the Contract.
Thus, to better-manage risk of changed site conditions, and to properly disseminate information useful to Bidders and Contractors, use the approach presented in EJCDC’s standard contract documents,, and avoid binding in the Project Manual site information such as subsurface data, geotechnical engineering reports, information on Constituents of Concern and a Hazardous Environmental Condition at the Site, and other site information.