Tag Archives: site conditions claim

TYPE I AND TYPE II DIFFERING SITE CONDITIONS CLAIMS

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In government contracting, there is a Federal Acquisition Regulation (FAR) on differing site conditions.  See F.A.R. 52-236-2. This regulation, and the standard, would apply outside of government contracting when you hear about differing site conditions claims.

I. TYPE I DIFFERING SITE CONDITIONS

A type 1 differing site conditions claim occurs when “[s]ubsurface or latent physical conditions at the site which differ materially from those indicated in the contract.”  See F.A.R. 52-236-2(a)(1).

For a contractor to prevail on a type I differing site conditions claim, the contractor MUST PROVE the following 4 elements:

1) that a reasonable contractor reading the contract documents as a whole would interpret them as making a representation as to the site condition;

2) that the actual site conditions were not reasonably foreseeable to the contractor based upon information available to the contractor outside of the contract documents;

3) that the contractor reasonably relied upon the contract documents; and

4) that the conditions differed materially from those presented in the contract documents and the contractor suffered damages as a result.

Appeal of-Skanska USA Civil Southeast, Inc., ASBCA 61220 (ASBCA 2025) (citation omitted).

As to element 1, the standard is a “reasonable contractor” and how that reasonable contractor would interpret the contract documents as a whole.  See, supra, Skanska USA Civil Southeast (quotation omitted).

As to elements 2 and 3, the contractor must prove “that the conditions encountered were reasonably unforeseeable in light of all the information available to it.” See id. If the contractor knew or should have known of the facts of the conditions of the site, this differing conditions claim will fail. See id. In other words, where the contractor “knows or has opportunity to learn the facts, he is unable to prove…that he was misled by the contract.” See id. (quotations and citations omitted).

As to element 3, reliance is a question of fact but “[r]eliance is unreasonable when a contractor has reason to doubt the accuracy of a representation, such as knowledge of a flaw in the information underlying the representation.” See, supra, Skanska USA Civil Southeast.

Then, as to element 4, the actual site conditions must differ materially from the contract documents resulted in damages to the contractor.

II. TYPE II DIFFERING SITE CONDITIONS

A type II differing site conditions claim is when “[u]nknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in the work of the character provided for the contract.” See F.A.R. 52-236-2-(a)(2).

A type II claim is a HEAVIER BURDEN OF PROOF than a type I claim because the contractor must prove “the recognized and usual conditions at the site, the actual physical conditions encountered and that they differed from the known and usual, and that the different conditions caused an increase in the cost of contract performance.” See Skanska USA Civil Southeast, supra (quotation and citation omitted). “The unknown physical condition must be one that could not be reasonably anticipated by the contractor from his study of the contract documents, his inspection of the site, and his general experience[,] if any, as a contractor in the area. See id. (quotation and citation omitted).

When dealing with a differing site conditions claim, make sure you know what you need to do to prove your claim.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

TYPE I DIFFERING SITE CONDITIONS CLAIM IS NOT EASY TO PROVE

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shutterstock_397981669A differing site condition claim will almost universally result in both a cost and time impact.    There will be additional, unanticipated costs incurred.  And there will likely be a delay requiring additional time to perform.

 

A Type I differing site condition claim is when the contractor encounters conditions at the site different than those indicated in the contract documents.  That seems easy enough to prove, right.  Nope.  And, I mean nope!  If you don’t believe me, consider the recent decision in Meridian Engineering Co. v. U.S., 885 F.3d 1351 (Fed.Cir. 2018).

 

To prevail on a Type I DSC claim, a contractor must prove that: (1) a reasonable contractor reading the contract documents as a whole would interpret them as making a representation as to the site conditions; (2) the actual site conditions were not reasonably foreseeable to the contractor, with the information available to the particular contractor outside the contract documents (i.e., reasonable foreseeability); (3) the particular contractor in fact relied on the contract representation; and (4) the conditions differed materially from those represented and … the contractor suffered damages as a result.  

 Meridian Engineering Co., 885 F.3d at 1356 (internal quotations and citation omitted).

 

In this case, the contractor entered into a contract with the government to build flood control structures.  During construction, the contractor encountered subsurface unsuitable saturated soils.  The contractor notified the government and modifications were issued as a result of the unsuitable soils.  However, the government eventually suspended the work following structural failures and then terminated the project.

 

An issue pertained to the contractor’s Type I differing site conditions claim that the subsurface unsuitable saturated soil caused delays and increased costs.  The trial court found that the existence of the subsurface saturated soils was reasonably foreseeable.  (If the site conditions were reasonably foreseeable, there is not a Type I differing site conditions claim.)

 

First, the specifications stated “[w]ater in varying quantities may be flowing in natural washes throughout the length of the project,” and “[t]he work site may be inundated because of [water] runoff.”  Meridian Engineering Co., 885 F.3d at 1357.  Based on these specifications, the court found that a reasonable contractor would interpret the specifications as a representation of water as a site condition.  Remember, the very first element in a Type I differing site conditions claim requires a reasonable contractor interpreting the contract as a whole would interpret them as making a representation about the site conditions. This kills the Type I differing site conditions claim.

 

Next, the original drawings showed the potential presence of saturated soil and the job was on a floodplain.  Based on this, a reasonable contractor would have performed a site inspection which, in turn, would have informed the contractor of the subsurface saturated soil conditions.   

 

Moreover, boring logs that accompanied the contract stated that variations may exist between boring locations.  Certain geotechnical information did indicate there would be hard unyielding material in excavation areas.  “[E]ven though the Contract indicated ‘hard unyielding material’ found at parts of the site, a reasonable and prudent contractor would not have understood the [C]ontract documents as providing an affirmative indication of the subsurface conditions to be nonsaturated at the site.  Meridian Engineering Co., 885 F.3d at 1357 (internal citations omitted).  Had the contractor undertaken a pre-bid site inspection, it reasonably would have foreseen a saturated soil condition.

 

This case demonstrates that Type I differing site conditions claims are not simple to prove. If the site conditions were reasonably foreseeable, perhaps with a pre-bid site visit, then there goes the claim.  And, presumably, the contract and accompanying geotechnical information will warrant a reasonable contractor to undertake a pre-bid site inspection (according to the Meridian court’s reasoning).  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.