Under NEC3 the phrase physical conditions as applied to Cl 60.1(12) isn’t explicitly defined in the contract or associated guidance notes. The guidance notes are focused on physical conditions in respect of the underlying geology, but there are of course other things, such as utilities in the ground.
For a particular project, an uncharted utility has been identified upon excavation which clashes with a structure foundation to be constructed by the Contractor as part of the WI.
We provided all utility records to the Contractor at time of tender, but obviously this utility wasn’t shown to be there.
My question is therefore whether the uncharted utility constitutes a physical condition of the site or not? It is there after all.
I understand from the ICE conditions of contract that a physical condition was defined as everything natural or man-made within the site, does the same basis hold true in the NEC form of contract?
Thinking through the solution to the problem, the only solution is to move the utility out of the way, the WI cannot show a utility passing through the structure’s foundation. So even if the discovery of the utility is found to not be a CE (subject to responses received) I would, as PM, have to instruct the relocation of the utility via a change to the WI and therefore notify a CE arising under 60.1(1).
Similarly, as we all know, utility records are renowned for their inaccuracy. If the utility had been shown on the drawing provided by the utilities in the SI to be on (say) the left hand side of a 7.3m wide carriageway, but found on site to be on the right hand side of the carriageway, is this a CE, or is it reasonable to have expected an experienced Contractor to have judged there to be a risk that the utility would be found to be in a different location? How far away from the line on the drawing provided by the utility is therefore unreasonable to not have allowed for in his tendered price?
Its all rather subjective, unlike the objective nature of the NEC in other respects, particularly weather.
Does NEC4 tighten up this definition in any way following (a) experiences from use and (b) legal precedents?