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Geotechnical News •September 2015
GEO-INTEREST
ever, the piling contractor withheld
payment for the inspection service and
the geotechnical firm was never paid
for this work.
Shortly after the first few piles had
been installed the technician who was
inspecting the work identified the error
in borehole location and correctly
surmised the cause of the error. The
technician first advised the contractor
on site of the error and then advised
his employers the geotechnical engi-
neering firm.
The piling contractor immediately
entered a claim for extra piling
although at this stage the total amount
of piling which would be required was
still unknown. Work was suspended
briefly but the contractor agreed to
continue and complete the work prior
to the resolution of the dispute.
Negotiation of the claim and threat of
litigation continued for almost three
years and was finally settled less than
half an hour before the claim was to
be heard in court. By this time all of
the facts of the case had been explored
and the only uncertainty remaining
was how the judge would interpret
the facts. The negotiated settlement
involved a payment to the piling con-
tractor of approximately 15% of the
amount claimed as an extra.
The key question in the dispute was
whether or not the contractor had
actually suffered a loss as a result of
the error in location of the boreholes.
The dollar value of the contractor’s
claim was based on the number of
feet of piling actually installed minus
the number of feet of piling which he
claimed to have estimated in making
his bed, multiplied by the per foot
allowance in the contract for piles
added or deleted.
Although it might appear that he num-
ber of feet of piles actually installed
would be easily and accurately
determined even this figure was in
dispute. The bid documents envisaged
piling being installed from the bottom
of the excavation to the basement of
the building. The contractor actu-
ally installed piles from the original
ground surface and cut them off when
the basement was excavated. This
amount of excavated and discarded
piling actually exceeded the amount
of the claim. The question thus arose
as to whether the contractor origi-
nally envisaged installing piles from
the surface or from the bottom of the
excavation.
Although an
obvious and
embarrassing error
had occurred the
geotechnical
engineer did not
automatically
accept the claim
that the contractor
had suffered a loss
as a consequence
of the error.
The contractor’s case was weakened
by the fact that he never documented
the method by which he had arrived
at the lump sum price for pile instal-
lation.
Since the geotechnical engineer had
firsthand detailed knowledge of the
length of each pile installed he was
abler to make a detailed comparison
between the length of piles installed
and what would reasonable be
estimated using boreholes plotted in
both their correct and their incorrect
locations. Various methods were used
including drawing contours; assuming
each borehole was representative of a
proportional area; or simply averaging
the borehole lengths and multiplying
by the number of piles on the assump-
tion that the boreholes statistically
represented the topography of the
bedrock.
The most detailed evaluation gave an
estimate of total pile length which was
closer to the actual amount when using
the boreholes plotted in the wrong
location than with the correctly located
boreholes. The drilling program was
never intended to accurately determine
the footage of piling required and in
fact was inadequate to achieve this
result. This was the reason that the
geotechnical engineer was opposed to
the use of a lump sum piling contract.
It appears that the piling contractor
suffered a loss as a consequence of
putting in a low lump sum bid in a
situation where he was not familiar
with the local conditions and where
he experienced a great deal of dif-
ficulty in installing the piles using his
preferred methods. The appearance
of the error gave him a fortuitous
opportunity to attempt to recoup some
of his losses.
It was never tested in court whether
or not the disclaimer would limit
the owner and architect’s liability
although the piling contractor entered
a claim only against the general con-
tractor and the geotechnical consul-
tant. The general topic of disclaimers
is discussed in Chapter 12.
This case illustrated the fact that
claims for errors and omissions are
sometimes used as a matter of stan-
dard business practice. In this case
although an obvious and embarrassing
error had occurred the geotechnical
engineer did not automatically accept
the claim that the contractor had suf-
fered a loss as a consequence of the
error.
C
M
Y
CM
MY
CY
CMY
K
