How To Include Unforeseen Site Conditions In Your Contract

Construction agreement definitions differ, yet generally an unforeseen site condition takes place when the owner as well as contractor at the time of the contract finalizing are unaware that the subsurface of a construction site has a physical property or does not have a physical property presumed to be existing.

For example, a physical object could be an old chemical tank underground, as well as an absent physical property could be soil that has the required load-bearing ability. Regardless of the type of project, subsurface problem clauses regularly top the list of the most important contract provisions and also the most usual root causes of construction disputes. The contract options to assign the danger are finite because there are just three scenarios readily available to the parties: the owner bears all subsurface condition risks, the contractor bears all the risks, or they share the risks together.


Although the owner is normally reluctant to bear all site risks, it does take place under particular situations. Examples include a construction supervisor job delivery method, a cost plus rates arrangement, an extremely short construction routine or a mindful choice that the owner makes to retain all subsurface condition risks in order to lower the contract price.

When the owner bears all the danger for site conditions, the construction agreement must clarify this with assumptions, inclusions and also exclusions. The contractor’s leaving out site investigations and responsibility for any and all subsurface problems that are known, unidentified, visible, not noticeable, direct or unforeseeable are instances of exemptions in the contract. The change-in-work section of the contract should reflect the site conditions risk allocation, entitling the contractor to a cost and schedule change order for remedying such conditions.


Design-build, EPC, construction manager at risk and also, in uncommon situations design-bid-build, are project delivery methods where the specialist is most likely to bear all site problem risks. The common denominators are a set price and a turnkey project. Here, the owner wants to pay a repaired or limited amount of money for the contractor to bear all site condition risks. For a design-bid-build delivery, the absence of a site condition provision could effectively shift all risks to the contractor for site conditions without the contractor meaning to bear those threats.

The construction agreement need to reflect this risk allocation with an exclusion that the proprietor bears no risks or costs related to an unpredicted or unknown site condition, absent misrepresentation, and also the contractor bears all site problem dangers– well-known, unknown, noticeable, not visible, foreseeable or unforeseeable. Besides giving that the contractor is not entitled to any kind of change orders associated with subsurface site problems, the contract must include language to the effect that the contractor has thoroughly explored the site. If, as is so frequently the case, the contractor can not execute an extensive examination as a result of time, cost or site area before signing the construction contract or sending a binding proposal, contingency money or an allowance in the contract rate for the site risk is standard.


The more typical circumstance is for the owner as well as contractor to share the subsurface condition risks; however, the parties might not consider several choices in the business offer and also contract negotiation. Increasingly, customized contracts and common type contracts  have a variety of site risk-sharing provisions. In fact, the expression “unforeseen site conditions” in the contract makes the most sense when the parties are sharing the site risk since if only one party bears all the risks, then actual site condition differences compared to assumed site conditions are irrelevant.

The good news is that shared danger allocation for subsurface conditions works with all project shipment techniques as well as contract prices kinds. When the parties share the site dangers, they can move a certain risk to the party best able to manage it. For example, the proprietor might have better expertise about a site that was purchased and cleared, or the contractor may much better understand the bad soil conditions in a certain region where he/she has actually constructed many jobs.

The very first contract option for sharing risk is transparent cost sharing. The parties split the expenses based upon a percentage (e.g., 60/40), a tiered model (e.g., the contractor bears the cost up to $20,000 and then the owner bears any type of extra expenses), or a GMP contract cost allowance with the unused balance refunded to the proprietor at the end of the project.

The second risk-sharing contract choice entails the parties’ decision of who is in charge of a specific subsurface danger. For example, the contractor bears the danger for a subsurface problem that is materially various from what is normally found in the geographical area or from what the proprietor’s geotechnical record determines.

In general, the only limitation the parties have in preparing a site conditions provision contract is their own imagination in crafting an unforeseen site conditions business deal. Though, legal assistance here is vital to guarantee that the contract will protect your interests and in any case.

Whether you are a general contractor, subcontractor, vendor, supplier, owner or developer, a construction law attorney from McKoon, Williams, Atchley & Stulce, PLLC will assist you in effectively and efficiently resolving your disputes. We can negotiate a contract, communicate your claims to the owner, developer or general contractor, assist you with being paid and much more. Don’t hesitate to contact us to get legal help you really need.