Contractual and Legal Considerations

Over time, several contractual/legal issues and disputes have arisen involving preparation, relevance, contractual priority, use and interpretation of geotechnical baseline reports (GBRs). Standard contractual provisions variously prescribe that differing site conditions (DSC) entitlement be evaluated and determined based on a comparison between encountered conditions and conditions that should have been reasonably anticipated at tender. This standard is different under different forms of the contract. The GBR should be the primary contractual basis for the evaluation of DSCs that relate to a subsurface condition indicated in the GBR. The GBR statements do not and should not carry the same level of a standard of implied warranty as to their accuracy or completeness. Some owners have taken a proactive role to promptly conduct a reasonably thorough investigation of existing conditions upon notice of a DSC; compare the existing conditions with those indicated in the contract and the GBR in particular; and confirm if reasonable reliance is demonstrated.