In a lump sum contract, the contractor discovers that the quantity of concrete work is 30% more than shown in the plans. The contract is silent on quantity variations. What is the contractor's most likely recourse?
Correct Answer
A) Absorb the additional cost as part of the lump sum
In lump sum contracts, contractors typically bear the risk of quantity variations unless specifically addressed in the contract terms.
Why This Is the Correct Answer
In a lump sum (fixed-price) contract, the contractor assumes the risk of quantity variations unless the contract explicitly provides for adjustment. When the contract is silent on quantity variations, the contractor has agreed to deliver the complete scope for the fixed price. A 30% quantity overrun, while significant, does not automatically entitle the contractor to additional compensation — the contractor must absorb it as part of the agreed lump sum.
Why the Other Options Are Wrong
Option B: Terminate the contract for impossibility
Terminating for impossibility is not appropriate here. Impossibility applies when performance is objectively impossible (e.g., the subject matter is destroyed). A 30% quantity increase is more expensive but not impossible to perform — the contractor can still complete the concrete work, just at higher cost.
Option C: Automatic adjustment based on unit prices
Automatic adjustment based on unit prices is not a feature of a lump sum contract where the contract is silent on quantity variations. Unit price adjustments apply in unit price contracts or when the contract explicitly includes a unit price schedule for variations. Silence on the issue means no automatic adjustment.
Option D: File a claim for changed conditions
A changed conditions claim (differing site conditions) typically applies when actual site conditions differ materially from those represented in the contract documents — for example, unexpected subsurface conditions. A quantity discrepancy between plan takeoff and actual field measurement is generally a takeoff error or plan ambiguity, not a 'changed condition' in the legal sense.
Memory Technique
Lump sum = lump it. You quoted a price for the whole job — quantity surprises are your risk unless the contract says otherwise. 'Silent contract = silent remedy for the contractor.'
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