CHANGED CONDITIONS CLAUSE IN HIGHWAY CONSTRUCTION CONTRACTS

THE USUAL CHANGED CONDITIONS CLAUSE IS IN TWO PARTS. THE FIRST PART PROVIDES THAT SHOULD THE CONTRACTOR ENCOUNTER OR THE STATE DISCOVER, DURING THE PROGRESS OF THE HIGHWAY CONSTRUCTION WORK SUB-SURFACE AND/OR LATENT CONDITIONS AT THE SITE MATERIALLY DIFFERING FROM THOSE INDICATED ON THE DRAWINGS OR IN THE SPECIFICATIONS, THE ATTENTION OF THE ENGINEER SHALL BE CALLED IMMEDIATELY TO SUCH CONDITIONS BEFORE THEY ARE DISTURBED. THE SECOND PART PROVIDES THAT SHOULD THE CONTRACTOR ENCOUNTER, OR THE STATE DISCOVER, UNKNOWN CONDITIONS OF AN UNUSUAL NATURE DIFFERING MATERIALLY FROM THOSE ORDINARILY ENCOUNTERED, THIS TOO SHOULD BE CALLED TO THE ATTENTION OF THE ENGINEER. ACTUALLY, THE CHANGED CONDITIONS CLAUSE IS AN EXPRESS PROMISE ON THE PART OF THE STATE TO PAY A CONTRACTOR ADDITIONAL COMPENSATION TO COVER INCREASED COST IF CONDITIONS ARE ENCOUNTERED DURING THE PROGRESS OF THE WORK SUCH AS THOSE DESCRIBED IN THE CLAUSE. SEVERAL CASES ARE CITED WHICH DEAL WITH THE ECONOMIC PURPOSE OF THE CLAUSE. HOWEVER, IT HAS ALSO BEEN HELD THAT IT IS THE RESPONSIBILITY OF THE BIDDER TO MAKE A CAREFUL INSPECTION OF THE SITUS OF THE WORK IN THE CASE OF BLAUNER CONSTRUCTION COMPANY V U.S., /94 CT, /CL, 503 - 1941/. THERE DOES NOT APPEAR TO BE MUCH CASE LAW RESPECTING THE SCHEDULED QUANTITIES OF THE WORK TO BE DONE AND THE MATERIALS TO BE FURNISHED. CASES ON NOTIFICATION OF THE ENGINEER BY THE CONTRACTOR ARE CITED. THE CHANGED CONDITIONS CLAUSE IS APPARENTLY NOT NEEDED IN HIGHWAY CONSTRUCTION CONTRACTS BECAUSE THE FEELINGS OF THE COURTS APPEAR TO BE THAT JUSTICE AND EQUITY DO NOT REQUIRE A STATE TO REIMBURSE A CONTRACTOR FOR INCREASED EXPENSE UNLESS THE MISTAKE WAS DUE TO THE ACT OF THE STATE. ON THE OTHER HAND, SHOULD THE CONTRACT BE EASIER TO PERFORM THAN ANTICIPATED, NO ONE WOULD REQUIRE THE HOLDER OF PROFITABLE CONTRACT TO SURRENDER A PORTION OF HIS LEGITIMATE PROFITS /WESTON V STATE NY, 186 NE 197/.

  • Authors:
    • Lindas, L I
  • Publication Date: 1966-12

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  • Accession Number: 00238346
  • Record Type: Publication
  • Report/Paper Numbers: pp 1-20
  • Files: TRIS
  • Created Date: Aug 11 1994 12:00AM