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Construction Law/Extra cost in materials


i am a project manager for a G.C.  I have a project which involves a sports track. When we initially bid the project the plans called for 4 area drains to be raised and man hole lids place in lieu of area drains and they gave an elevation. The plans also showed one new contour line in the middle of the field.  After work began it became clear that we were going to have to add fill dirt to bring this up to grade.  The engineer is stating that they had this covered based on elevation converting area drains to manholes and one new contour line  there was no other contours showing existing elevations or existing spot elevations that would lead anyone to believe there was fill to be hauled in.  I am in the state of Georgia do I have a case to be made for a change order?

Dear Paul (Georgia, USA)
Thank you for your query.  It appears to me the answer to your question will turn on facts and the close reading of the contract: this is where the lawyers -if it ever gets to that level - are going to split hairs.  If I understood the nature of your problem correctly, it appears to me that the contract documents specify:
a.   At least one new (proposed) contour line – re: grading plan  - somewhere in the middle of the field, implying that the filed has to be re-graded or raised;
b.   Whereas the documents show the new / proposed grade elevations for raised 4 MH covers  proposed to replace existing area drains;
c.   But contract documents fail to show the existing elevations via spot grade shots or contours, And, as a result of such ambiguity, the Contractor failed to include fill material and installation costs in his bid.
There are 2 possible outcomes of this problem.  No question, the Owner / Engineer and, possibly, the Project Manager, are going to insist that if the Contractor saw the ambiguity at the time of bidding, the Contractor had an obligation – after thorough review of the Bid Documents – to raise a question before the bid time.  Also, undoubtedly, the Contractor’s position is likely to be that the financial responsibility (or liability) for any latent ambiguity imbedded in the Contract Documents not discovered prior to Contract execution lies with the Owner, as the prepared of the document.  If the Owner recognizes that the documents prepared on his behalf contained a latent ambiguity, the Engineer may issue a bilateral change order. In the alternative, if the Owner refuses to recognize such latent ambiguity and refuses to issue a change order for the fill installation, the Contractor will have to carry its burden of proof with an aid of experts (in mediation, arbitration or litigation), the cost of which may be prohibitive and prevent the claimant contractor from maintaining its claim.  I cannot say more from the facts stated in your inquiry, but I hope this helps in determining Contractor’s future course of action.
Respectfully yours,
Gerry Sverdlin, PE, Esq.
Doha, Qatar  

Construction Law

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Gerry Sverdlin


Questions I can answer or provide assistance to reflect the following subjects: contract terms and conditions, interpretation of ambiguity, construction management and practices, claims for costs and time, variation / change orders, disputes, dispute resolution techniques and organizations, claims for extra work or materials, delay analysis, disruption or interference, defective design and negligent supervision, construction risks and mitigation, warranties and insurance. Questions I can NOT answer: too numerous to list here.


Mr. Sverdlin provided over 20 years of services in dispute resolution and expert opinion of complex construction claims for extra work, delay & acceleration, defective design & installation, unauthorized deviations, differing site conditions, productivity loss, labor & material shortage, owner’s interferences, force majeure, bonding, warranties and insurance coverage. Mr. Sverdlin participated in dispute resolution proceedings regarding 10 mile sub-aqueous outfall tunnel at Deer Island Treatment Plant – Boston Harbor Project, and claims arising out of construction of the South Boston / South Bay Interchanges for the Central Artery/Tunnel Project in Boston, Massachusetts, USA, and multiple proceedings Middle East. Specialties: Mr. Sverdlin established expertise in construction contract preparation under EJCDC, AIA, FIDIC and agency-specific bespoke contract frameworks: procurement administration, resolving defects in scope of work coverage, specification and estimates, change order processing, project controls & cost recovery. Engineering practice encompasses design & procurement management of highway & rail transportation systems, wastewater treatment and drainage networks, key performance indicator regimen.

2011 - CIArb Member Grade 1999 - Attorney at Law – Massachusetts Bar, BBO # 642980 1992 - Registered Professional Engineer - PE: Lic. MA-36839 - Civil Affiliated Memberships: MBA - Massachusetts Bar Association DRBF - Dispute Review Board Foundation TASA - Technical Advisory Service for Attorneys

2010 - 2011 - American University in Dubai -Grad. Sch. of Business Administration Construction Contracts, Means & Methods, Claims & Changes, Project Controls March 2009 - Chamber of Commerce, Colombo, Sri Lanka – Construction Management Seminar Changes & Claims, EOT/Delay Damages, Loss of Productivity – Measured Mile 2000- 2007– Boston Architectural Ctr & Wentworth Inst. of Technology - Construction Law 1991- 1993 - Northeastern University, Boston, MA – Land Surveying, Sewage Disposal System Numerous continuing education specialty courses Suffolk University Law School - Juris Doctor, law -1993 – 1997 Northeastern University - MS, Construction / Public Works Management - 1993 Polytechnic University - BS, Civil Engineering 1982 – 1985

Past/Present Clients
Representative Projects Dubai International Airport UAE Muscat & Salalah Int'l Airports Oman South River Dredging Mechanical Scituate, MA Permitting / Boundary Dispute (Title V) Worcester, MA Hazardous Material Site Assessment New Bedford, MA Groundwater Pollution Monitoring Burlington - Woburn, MA Hazardous Material Disposal - Site Clean-up Wrentham, MA Sewer Rehabilitation Project – STEP Abu Dhabi, UAE Dubai Metro - Road & Transportation Authority, Dubai, UAE Boston Harbor Project - Deer Island MWRA - BHP Winthrop, MA 1,200 MGD Waste-Water Treatment Plant Doha North Sewerage Treatment Works Ashghal, Doha, Qatar 254K m3/d STP, 25-km triple force mains, 33-km Interceptor Sewers 10,000 l/s PS Central Artery / Tunnel Project - MHD / MTA Boston, MA 116 lane-miles Old Colony Railroad - Commuter Rail (Boston, MA 70+ mi) Cherry St. Reconstruction Full-Depth Bridgewater, MA 2.1 mi Scenic Roads Reconstruction Town-wide Wayland, MA 8.7 mi Strawberry Hill Rd Reconstruction Full-Depth Concord, MA 1.7 mi Craigsville Beach Rd Reconstruction Full-Depth Hyannis, MA 3.4 mi Water Main Replacement Southborough, MA EMAAR – Gulf III Towers, Dubai, UAE Mixed-Use Hi-Rise Peabody Properties Residential Hi-Rise Lynn, MA Bristol Properties Shopping Mall Attleboro, MA May Institute (children w/special needs) Institutional Randolph, MA Bear Hill Executive Park Commercial Waltham, MA Prospect Hill Executive Park Commercial Waltham, MA Residential Community Subdivision 128 lots Hopkinton,MA Retirement Community Subdivision Residential – 126-lots Warren,MA Independence Mall Retail Kingston, MA Mashnee Village Subdivision Residential – 54-lots Buzzards Bay, MA Hyannis Industrial Park Heavy Commercial

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