INNOVATION March-April 2017

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data, their intent must surely be to reduce the uncertainty and, thereby, the owners’ costs. What to Do with the Results Once the results from geotechnical investigations have been obtained, what is to be done with them? The decision often turns on whether the results are considered helpful or hindering, accurate or guesswork. The choices are to discard them, produce but not use or disclaim them, or produce and use them. The selection of any of these choices should be considered carefully. Discard Them We may be inclined to discard, rather than reveal, irrelevant or unreliable results, lest they confuse those who may be exposed to them. However, extreme care must be taken anytime the inclination is to discard the results. In one case, 4 a contractor undertook the construction of renovations to an old reservoir based upon information provided to tenderers; however, the actual conditions were different, and the contractor lost money. The Court held that undisclosed information of “unusually risky soil conditions” was of a nature that “cried out to be revealed”, and would have affected the contractor’s bid. Broadly, the withholding of any

“material information” necessary for a “proper bid” entitled the contractor to compensation. In another case, 5 a Court held that, where information is of “vital or decisive importance” to a contractor not in a position to otherwise become informed, it has to be revealed. Produce Them If a decision is made to produce reports and information with the tender documents, care must still be taken. In the US, 6 the Spearin Doctrine holds that an owner impliedly warrants the accuracy of the information, plans and specifications provided to a contractor and is responsible for differences between the actual conditions and the information produced and relied upon. While US authorities appear to more broadly favour contractors than do Canadian authorities, it has been held 7 in Canada that an owner owes a duty to its contractor to “ensure that the design and specifications forming part of the tender documents were accurate or to warn bidders that they required verification.” Whether or not a duty rests on the owner to ensure the accuracy of the design, that duty can be overcome by contract. For example, 8 an owner’s responsibility for a defective specification that pipe purchased from a supplier must be protectively coated was avoided by the contractor’s warranty that the pipe supplied under that specification would be fit for the purpose. In another case, an owner 9 provided a design, but left the construction method to the contractor. The method chosen by the contractor did not work, and litigation ensued. The Court stated that it was “doubtful that a construction contract implies a warranty by the owner that the work can be carried out or the result achieved.” No matter what information is provided, the contractor is required to deal with it reasonably and in context. 10 If the contractor subsequently claims conditions have changed, it must demonstrate that the information provided was erroneous and, further, that it actually relied upon the information to its detriment. 11 Disclaim Them When the owner believes the geotechnical investigation results need to be disclosed but are unreliable to the extent that the owner does not wish to be bound by them, the results can be disclaimed. Disclaimer forms are many and varied, and include: Before submitting a tender, tenderers shall carefully examine the contract documents and the site of the proposedwork and fully inform themselves of the existing conditions and limitations. No subsequent allowance under the contract documents will be considered for any bidder who has failed to become familiar with all aspects of the work. A geotechnical report has been prepared for this Project and is available for information only. The report is not part of the contract documents. The Owner assumes no responsibility for any conclusions or interpretations made by the Contractor based on the information made available by the Owner.

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