By: Mark A. Rysberg
A site investigation clause is a provision in a construction contract that indicates that one of the parties has made an inspection of the property, project, or location where certain services, labor, or material will be provided, and that the party making the inspection is satisfied that performance will be possible given the circumstances. The following is an example of a site investigation clause:
Each contractor shall examine the construction site and area and compare its findings with the Drawing and Specification and shall inform and satisfy itself as to all matters necessary for carrying out the work; including but not limited to, general working conditions, labor and equipment requirements, accessibility, condition of the premises, obstructions, drainage conditions, actual levels, excavating, filling, etc. The Contractor shall investigate all conditions as to character of the site and character of existing structures at or adjacent to the site, and the character and extent of the Owner’s and other Contractors’ operations in the area, and in connection with the project, and shall take all such matters into account in submitting its bid. No allowance or extra payment will be subsequently made because of any such items or conditions occasioned by the Contractor’s failure to make such comparison and examination or on account of interferences from the Owner’s, Construction Manager’s and other Contractors’ activities, or by reason of any error or oversight on the Contractor’s part.
The purpose of a site investigation clause is to prevent claims for unforeseen site conditions. However, there are many limitations on site investigation clauses.
However, issues may arise when conditions that were not, or could not have been, revealed based on the information available. For example, there are circumstances where an owner would be contracting with a general contractor for performance of various services which would include excavation to build a foundation of a structure. Typically, an owner would provide some sub-surface soil data, but either the data or the contract would carry with it a disclaimer that the general contractor, then as a bidder, would be obligated to make its own investigation as to what the underground site conditions were. But, the extent that a bidder can make such investigations is limited to a review of the subsurface data provided by the owner as a bidder will typically not be permitted to perform additional subsurface testing. In that and similar situations, a bidder’s risk based on a site conditions clause will likely be limited to the physical observations available at the site and the data contained in any documents provided by the owner.
In other words, these clauses do not require a bidder to perform an exhaustive investigation into the site conditions. Rather, bidders should consider visiting the site, review all site condition data provided in the bidding documents, and consult with their counsel to evaluate whether a site conditions clause may be negotiated to more fairly define the scope of the representations contained therein.
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