As an example of collaboration, Gransberg suggested that, during the bidding phase, the owner should have provided an opportunity for bidders to offer alternative technical concepts including confidential, one-on-one meetings with the various DB teams to clarify ambiguities before they arise. A common question may be, “Is this what you really meant?” The owner should be receptive to requests by the bidders for addi- tional subsurface data, and provide the oppor- tunity to either obtain the data requested or allow the bidders to con- duct their own inves- tigations during the procurement period. In our industry, differing site conditions The owner should be receptive to the requests of the proposers for additional subsurface data and provide an opportunity to fulfill them. Doug Gransberg (DSC) clauses are especially valuable and should be included within the contract. DSCs actually do add value, as they give the contractor a recourse for recovering from changed conditions, possibly allowing for a lower and more competitive initial bid. The use of scope validation periods (post-award) facilitates the distribution of risk. The selected DB contractor is allowed to perform additional subsurface char- acterization to validate bid assumptions and make any changes deemed necessary. The scope validation can be accomplished by using multiple notices to proceed — for early geotechnical site investigations, etc. Gransberg’s research indicates that it is very difficult for an owner to avert DSCs via contractual language. The Owner’s Perspective As a representative of the Utah Department of Transportation (UDOT), Jon Bischoff, P.E., provided the owner’s perspective. He noted that an owner should provide adequate subsurface investigation data for a DB contractor to be able to bid a project competitively without significantly adding (costs) to its bid that accommodate unknown or indeterminable risk. UDOT’s policy for DB projects is to conduct approximately 75% of the subsurface/site investigation for a typical project (UDOT policy is consistent with the requirements 84 • DEEP FOUNDATIONS • JAN/FEB 2018 defined by the American Association of State Highway and Transportation Officials [AASHTO]). An owner should address DSCs within the framework and context of the contract for Design-Bid-Build (DBB) and DB projects. However, if a contractor provides a value engineering (VE) proposal, UDOT’s position is that the contractor assumes the risk for potential DSCs. If the contractor believes that its VE proposal has merit but should be based on better subsurface data, the contractor should invest in the additional exploration necessary t o c o n f i r m t h e subsurface conditions and its assumptions, and then recover the associated costs in the winning bid. Since the mid-1990s, UDOT has realized a dramatic decrease in evaluating DB bids based on a technical basis. • In 1996: 50% technical weight with 10% geotechnical • By mid-2000s: 20 to 30% technical weight with 10% geotechnical • Since 2010: 10 to 20% technical weight with 0% geotechnical However, the evaluation includes a geotechnical fatal flaw clause for any geotechnical concept proposed by the DB contractor that does not seem feasible or appropriate for success of the project as determined by the owner. The Legal Perspective Rick Kalson, Esq., a construction lawyer and partner at Benesch, Friedlander, Coplan & Aronoff, who often represents drilling contractors in construction disputes, provided valuable perspective from his experience in construction litigation and negotiating many sub- contracts. He reminded the attendees of a U.S. Supreme Court decision in U.S. vs. Spearin (248 U.S. 132) that dates back 100 years to 1918. Simply stated, the Spearin Doctrine, as it is commonly known, dictates that if a contractor builds according to the provided plans and specifications and there is a defect in the result, the owner owns the defect and, by implication, the designer owns the defect. However, the caveat is that the contractor has to build exactly to the plans and specifications. The trouble with relying on this ruling begins when the contractor deviates from exactness of the plans and specifications, usually in an attempt to improve upon a problematic situation. Obviously, this situation can become confusing when the owner provides the subsurface characterization information, which often includes facts as well as interpretations made from facts. Owners may try to circumvent the tenets of the Spearin Doctrine by simply providing al l of the geotechnical information that is available at the time of bidding. With many large projects, owners may have had years to accumulate this information. Owners may allow contractors to use these data and information to develop a bid proposal, knowing that, typically, a contractor will be selected based upon the lowest responsible bid for the project. However, the information is sometimes provided for information only, meaning that a contractor purportedly cannot rely on the geotechnical information contained in those documents. The vast amount of information that is provided for information only with a very short time frame to understand the significance or applicability of the data puts the contractor at a disadvantage, yet, at the same time it can be effectively argued that the Spearin Doctrine remains valid despite the presence of this kind of clause. Of course, a contractor has a duty to investigate, but that duty includes project aspects that exist above ground, and are readily available and easy to see. However, does a contractor also have a duty to know what is below the ground? Most states differ on their interpretation of that duty. From a practical perspective, it is very difficult to know what is below ground, hidden from sight. Contractors rarely, if ever, perform a subsurface investigation during the bidding phase and prior to being awarded the project. Another approach an owner can use to circumvent its responsibility, as established by the Spearin Doctrine, is related to the time that a contractor may take to inform the
