Concealed or Unknown Site Conditions
(Fixed-Price Construction Contract)

Summary

This concealed or unknown site conditions clause may be included in a fixed-price construction contract to address the responsibilities associated with the discovery of unanticipated site conditions during the progress of a construction project, also commonly known as differing site conditions or changed conditions. This clause contains practical guidance and drafting notes. A site conditions clause usually requires the contractor to inspect and understand the grade level and above-ground job site conditions prior to the start of any construction activities. However, it can have the potential to be an expensive risk transfer clause for the contractor in a fixed-price contract. A soils investigation, which is typically performed by a specialized geotechnical company is often used to identify subsurface conditions (i.e., rock, high water levels, buried toxic waste, soft organic clay-like materials unsuitable for foundations, cavities such as limestone caves, old tunnels, etc.) that when left undiscovered can create problems for contractors. Capitalized terms used in this clause should be conformed to those used in the relevant contract. For a full listing of key content covering construction, see Construction Resource Kit. For further guidance see Owner-Contractor Agreements .