CONCRETE PAVEMENT PROGRESS 20 WWW.ACPA.ORG LEGAL MATTERS Contact us today! Grandt Mansfield 503-445-2226 | grandt@llmpubs.com area and knew of propensity for water, the way water reacted in this case—spurting, bubbling, and creating more runoff—could not have been anticipated). So, next time you encounter something that costs you more time and money on a project, don’t give up just because there either isn’t any indication in the contract documents, or the material is indicated but reacted differently. You need to ask yourself whether the material you encountered and the way in which the material behaves should have reasonably been anticipated, not whether it possibly could have been. If you do not believe it would have been reasonable, you have a good faith basis to seek your increased costs, despite the inevitable pushback you will likely receive from the engineer. In your discussions, simply ask the engineer to provide you with any information they believe should have indicated the condition on this particular project, and not just in general (like the engineer in Iowa who believed the standard specifications meant the contractor should have anticipated rock excavation). If they cannot point to something specific, why should the contractor have inflated its bid unnecessarily? It is often helpful in these situations to point out the underlying purpose behind the DSC clause to help the engineer and the owner understand why they should be reasonable in the acceptance or denial of a DSC claim. References 1. Board Decisions are often excellent places to look for well-reasoned precedent on Federal Projects, due to the specialized nature of the cases the administrative judges assigned to the boards often have a much better understanding of the technical aspect of the construction process. And, although not binding, when the particular issue has not been addressed in your jurisdiction, the reasoning of the Board Decision can be used for guidance. Thomas Olson is the founding partner of Olson Construction Law. Tom’s commitment is to provide guidance on how to resolve issues on the jobsite, not in the courtroom. Tom has worked on highway heavy projects throughout much of the United States for more than thirty years. A prolific speaker and writer as well as attorney, his expertise is in concrete and asphalt paving, utility, earthwork and bridge construction, schedule analysis, material testing, and the technical and legal obligations of both engineers and contractors. Rielly Lund is a committed advocate for contractors, with the ability to quickly and accurately analyze a client’s issue within the parameters of each specific contract. Rielly works with contractors through all stages of construction, from bidding to acceptance, with the goal of minimizing risk and maximizing profits for contractors. With this in mind, Rielly enjoys discussing various contractual requirements with contractors before issues arise, so they are best able to meet any challenges head on. ABOUT THE AUTHORS » continued from page 19
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