How are archaeological discoveries on project sites handled in your contracts?

Salvage archaeology, the collection of archaeological data and materials from a site in danger of imminent destruction, can sometimes delay a project. The removal and preservation of archaeological materials discovered during construction is usually covered by state or federal funding, but the costly delays that can have disastrous impacts on project completion are not. However, there does not appear to be significant case law on delays caused by the discovery of artifacts.

On some construction projects (and on most construction projects in certain areas) contingency funding is established to cover the cost of the inevitable delays and to serve as a disincentive for the intentional destruction of artifacts during the construction process. This is more common at the federal level than for projects involving state or local governments, and is much less common with development projects using private funding.

A prudent practice is to alert possible contractors that archaeological artifacts may be in the area in the bid documents and in the construction contract, and to require the contractor to stop work in the area of a discovery while the owner performs an archaeological assessment and or recovery. This, however, places the contractor at risk, with no means of determining the likelihood or length of a delay. It makes sense for project owners to invest in some preliminary evaluation of the site before a project is put out for bidding. This would help project owners and prospective contractors by identifying that while the project might have to be suspended for recovery efforts once excavation is in progress, certain areas are more likely to contain artifacts than others. The possible contractors would then be better able to calculate their risk of delay and the project owner would be in a better position to calculate a contingency.

For a further discussion of this issue and a look at how standard contract forms treat (or ignore) the discovery of archaeological materials on a site, policyholders and brokers can read Schinnerer’s Management Advisory on the subject.