The Niagara Tunnel Facility project required the excavation and construction of a 10.4 km water diversion tunnel in Niagara Falls, Canada. The tunnel boring machine (“TBM”) used on the project was, at the time, the largest diameter hard rock TBM in the world. The contractor encountered extensive and impactful differing site conditions early in the construction process and hired Watt, Tieder, Hoffar & Fitzgerald, LLP (Watt Tieder) to represent them in preparing and presenting their claim to the Contract’s Disputes Review Board (DRB).
The DRB recommended that the Owner, Ontario Power Generation (“OPG”), recognize the existence of the claimed differing site conditions and issue an equitable adjustment to the contractor. Because the project was not yet 50% complete and the differing site conditions were so pervasive, Watt Tieder convinced the parties to abandon their fixed price contract in favor of a newly negotiated “Target cost and target schedule” Contract with incentives and disincentives. The new “target cost” was more than twice the amount of the original fixed price contract. The Project was successfully completed within the negotiated targets and no additional disputes arose.