HIGHLIGHTS An owner who does not ask...for a "design locate," or does not place the resulting information on the drawings, cannot escape liability for failure to follow the law.
Bidders, however, should be aware of surface features that reveal undisclosed utilities or that disclosed utilities might not be accurately shown. Contractors frequently ask for change orders to cover the cost of dealing with underground utilities that were not disclosed or inaccurately shown on the drawings. Just as frequently, owners deny those requests, pointing to disclaimers in the specifications that make the contractor responsible for locating utilities.
Claims for undisclosed utilities must be considered in the context of the owner's affirmative duties under Minnesota's One Call law. In 2001, the law was amended to require owners to (1) ask the One Call Notification Center to request information from the utility companies on the "type, size, and general location" of utilities on the site, and (2) disclose the information received "on the final drawing used for the bid or contract." The owner must also include a note on the drawings stating the quality level of the source of the utility information on the drawings:
- Level D—Existing records: Using utility owner records or conversations.
- Level C—Survey of surface features: Surveying and plotting visible aboveground utility features and correlating with Level D information.
- Level B—Designating: Using surface geophysics to identify existence and approximate horizontal locations.
- Level A—Locating: Exposing and measuring horizontal and vertical locations.
Not surprisingly, most utility information on drawings is Quality Level D.
This law limits an owner's ability to shift the risk of identifying and locating existing utilities before bidding. An owner who does not ask the One Call Notification Center for a "design locate," or does not place the resulting information on the drawings, cannot escape liability for failure to follow the law.
During pre-bid site investigations, bidders should be able to assume that all known utilities have been disclosed. Bidders, however, cannot turn a blind eye to surface features (like utility boxes or signs) that alert a reasonable bidder that an undisclosed utility exists or a disclosed utility is not accurately shown. If surface features are inconsistent with the drawings, the bidder should notify the engineer and ask for clarification.
Unfortunately, many owners and engineers remain unaware of their One Call duties. With education, more of them will request "design locates" and take care to place better utility information on the drawings. This could reduce the number of undisclosed utilities and the disruptions and claims that come with them.