The Employer has undertaken additional ground investigation works within the Site Boundaries. The results of the supplement the existing Site Information upon which the agreement was based; however, the content of the revised Site Information which has been issued to the Contractor attributes additional cost for the construction of the works.
Can you advise how revised Site Information can be issued to the Contractor, if at all, or whether the process would be to disregard the additional ground reports and proceed to a compensation event under 60.1(12) on the basis the original Site investigation differs from that encountered?
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You can issue them the new Site Information which they will be able to use to take into account future compensation events in assessing risk.
However, the original contract works and price were based upon the original Site Information and therefore if it shows ground conditions that the Contractor could not have expected then this will be a compensation event under 60.1(12) as you highlight.
As Glenn states, a physical condition matter is based upon being ‘at the Contract Date’, which would take account of Site Information current at that time. Any subsequently issued Site Information allows appropriate mitigation measures to be taken for any ground obstructions that you are now aware of, but which you were not previously.
In my mind, the Employer should have issued this information as part of an early warning notification. This ensures a formal record of the matter thereby protecting the Employer’s interests.
Note that any physical condition compensation event would still be assessed based on the assessment at the Contract Date, but your actions should change as a result of the additional Site Information, thereby mitigating the effect.
This should likely reduce the impact of compensation events, both in terms of the Prices and programme, so should benefit both parties.