A Contractor may conduct  extensive sub-surface investigations and acquire all attainable significant information regarding the Site and the Works prior to the submission of its tender offer, which should have reduced the risk of encountering adverse physical conditions and artificial obstructions during construction. However, a Contractor may still encounter unforeseen hard rock, sub-surface water, sinkholes, sewers, cables, pipes, sub-surface structures, burial grounds, earthquakes, landslides, and the like.

The burden of proof by the Contractor, when encountering physical conditions or obstructions, is to prove that the physical conditions or artificial obstructions were not “reasonably foreseen……at the time of submitting”  its “tender.”  The test for “reasonably foreseen” with regard to adverse physical conditions or obstructions is directly related to the data and information made available by the Employer in accordance with, for example, the GCC 2015, Clause 2.3. It is to the Employer’s advantage to provide adequate, appropriate and accurate data and information to enable Tenderers to have a full appreciation of the physical conditions and obstructions instead of providing disclaimed, inferior or no data and information at all. The Employer who provides inferior or no site information would certainly be far more exposed to claims for encountering adverse physical conditions and obstructions than an Employer who provides sufficient data and information.

The question on whether or not the Contractor is an experienced Contractor should have been taken care of when the Contractor was considered for the award of the Contract, whereas this is usually taken care of by the CIDB grading designation of the appointed Contractor and the evaluation of the Contractor’s experience during the tender evaluation phase.  Once appointed, it can be argued that the Contractor was deemed “experienced” for the work to be undertaken in respect of the Contract.

The encountering of “weather conditions at the Site or the direct consequences of those particular weather conditions” at the Site are excluded from the provisions of GCC 2015, Clause 2.2, as the consequences and the risk of weather conditions are provided for in Clause 5.12.2.2 of the GCC 2015. Although weather conditions like rain, hail, snow, wind, etc. at the Site do not qualify as adverse physical conditions, the risk of unforeseen weather conditions elsewhere, off Site, which affect the Site or access to the Site, also lies with the Employer in terms of Clause 2.2.

As soon as the Contractor becomes aware of the adverse physical conditions or artificial obstructions, the Contractor is under an obligation to notify the Employer’s Agent, in writing, of the said conditions or obstructions, the nature and extent of the physical conditions or artificial obstructions and the additional work required to deal with such conditions or obstructions.

Upon issuing of such written notice to the Employer’s Agent, the Contractor is entitled (and obliged) to proceed in carrying out the additional work as proposed, without limiting the Employer’s Agent’s right, upon receipt of such notice, to suspend the progress of the Works in terms of Clause 5.11.2 or to issue a Variation Order in terms of Clause 6.3. It logically follows that if the Employer’s Agent fails to exercise its right in terms of Clause 2.2.3 that the Employer’s Agent is tacitly in agreement with the additional work as proposed by the Contractor. A suspension of the Works should only be necessary if the Employer’s Agent wants to first consider the technical and/or financial implications before allowing the Contractor to continue under the conditions or with the obstructions encountered, based on the additional work proposed by the Contractor.

In terms of Clause 2.2.4 the Contractor’s right to claim in respect of a delay and/or proven additional cost is dependent on the issuing of the written notice in compliance with Clause 2.2.1, 2.2.1.1 and 2.2.1.2. The Contractor will not be entitled to recover any delays or costs incurred prior to giving such written notice. The same goes for further written notices that have to be issued for additional or more extensive adverse physical conditions or artificial obstructions, as the issuing of the first notice will not serve as a “catch all” notice for all subsequent additional or more extensive adverse physical conditions or artificial obstructions encountered.

Finally, it should be noted that a claim for extension of time and proven additional costs in the ambit of Clause 2.2.4 of the GCC 2015 will only be applicable from the date of the notice given, and not claimable retrospectively for the time delays and cost incurred before giving such notice.