INNOVATION March-April 2017

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• a material difference in the conditions encountered; • reasonably unforeseeable actual conditions; and

• excess costs solely attributable to the materially different conditions. Inadequacies in information provided to bidders can be the basis for a Type I changed condition. 22 In the US, even where no specific geotechnical information is provided, the nature of the design can amount to a representation as the basis for a Type I changed condition. 23 In interpreting the information provided, a contractor must exercise a reasonable degree of due diligence. 24 A complete lack of geotechnical information provided by the owner is not a basis for a Type I changed condition. 25 A Type II changed condition claim requires “extraordinary circumstances not contemplated by the parties”, 26 such as where underground drilling encountered asphalt, concrete, rebar and debris 27 or where significant amounts of surface and subsurface water were encountered. 28 Summary Underground works can be performed without prior geotechnical investigations, but the uncertainty of what might be found during construction presents risk that will negatively impact costs. Geotechnical investigations may help reducing that risk, but they can never completely eliminate it. The use made of the geotechnical investigation results affects the assignment of the risk. To be effective in that assignment, how the results are used requires careful consideration. v Gregory Miller, P.Eng., LLB, is a partner with Vancouver-based Lindsay Kenney LLP Barristers & Solicitors. He has been a professional engineer in BC for more than 30 years. 1. Cranbrook (City) v. Gabriel Construction (Alberta) Ltd. , 2014 BCSC 220 2. Kaiser Industries Corp. v. United States , 340 F.2d at 329 3. See Hill (R.J.) Explosives Consultants Ltd. v. Newfoundland (Minister of Municipal Affairs), 1988 CanLII 5592 (NLSCTD) 4. Begro Construction Ltd. v. The Board of Directors of the St. Mary River Irrigation District and others (1994), 15 CLR (2d) 150; see also Goodfellow’s Trucking Ltd. v. New Brunswick , 2003 NBQB 456; North Pacific Roadbuilders Ltd. v. AECOM Canada Ltd. , 2013 SKQB 148; Rapid Demolition Ltd. v. Guarantee Co. of North America , 1990 CanLII 708; Turf Masters Landscaping Ltd. v. TAG Developments , 1994 CanLII 4238 5. Constructions du Saint-Laurent Ltée v. Aluminerie Alouette Inc., 2001 CanLII 25058 (QC CS) 6. United States v. Spearin , 248 US 132; See also Sherman R. Smoot Co. v. Ohio Department of Administrative Services , 136 Ohio App. 3d 166 7. Karl Mueller Construction Ltd. v. Northwest Territories (Commissioner) , 1989 CarswellNWT 52; Tors Cove Excavating v. Newfoundland and Labrador Housing Corp. et al , 1992 CanLII 7265 (NL SCTD); Cardinal Construction Ltd. v. Brockville , (1984) 4 C.L.R. 149 8. Greater Vancouver Water District v. North American Pipe & Steel Ltd ., 2012 BCCA 337 9. C anadian National Railway Company v. Volker Stevin Contracting Ltd. , 1991 ABCA 287; see also Temar Construction Ltd. v. West Hill Redevelopment Co. , (1986) 21 C.L.R. 156 10. See C & M McNally Engineering Inc. v. Greater Moncton Sewerage Commission, 1993 CanLII 5321 (NBCA) 11. Dexter Construction Company v. Her Majesty the Queen in Right of Canada , (1987) 29 C.L.R. 124 12. Appeal of James McHugh Construction Company , (1982) 82-1 BCA P15682 (Corp of Engineers Board of Contract Appeals); 13. Fattore Company Inc. v Metropolitan Sewerage Commission of the County of Milwaukee , (1972) 454 F.2d 537 and Metcalf Construction Company Inc. v. United States , 2013-5041 USCA Federal Circuit 14. Butler (Bruce) (1974) Ltd. v. Bonavista Peninsula Interfaith Senior Citizens’ Foundation and BFL Consultants Ltd. , 1989 CanLII 4995 (NL SCTD); Degelder Construction Co. B.C. Ltd. v. Westfair Properties (Pacific) Ltd. , 1999 CanLII 4712 (BC SC); Carman Construction Ltd. v. Canadian Pacific Railway Co. , [1982] 1 S.C.R. 958

GeoPacific Consultants Ltd. and Golder Associates - Construction designed and installed a combination low- permeability cut-off and retaining wall (T op ) at Richmond's River Green development that allowed an underground parking structure to be built ( P hoto : G older A ssociates ). (B elow ) The BC Ministry of Transportation and Infrastructure faces geotechnical challenges on roads and infrastructure throughout the province. P hoto : bc ministry of transportation and infrastructure , cc by nc nd .

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