By Bruce Jervis
The legal standard for a successful differing site condition claim is stated in a variety of ways. At its most fundamental level, however, it comes down to two questions:
- What representations did the contract documents make regarding physical site conditions?
- Was the contractor reasonable in interpreting those representations for purposes of bid preparation?
In a recent case out of the state of Washington, the public project owner included raw geotechnical data in the contract documents. The contractor made certain inferences regarding soil type transitions, which would necessitate equipment stoppage. The contractor’s assumptions proved to be incorrect. A court ruled that the contract did not represent what the contractor alleged. And, the contractor drew unreasonable inferences from what the contract did represent.
Although this contractor probably did stretch when drawing inferences from raw data, the case raises a troubling point. More and more, project owners are not only contractually limiting the use of their site data, but arguing that any interpretive conclusions drawn by contractors are unreasonable and unfounded.
Isn’t site data provided to enable a prudent contractor to price the work as accurately as possible? How can site data exist in a vacuum, not subject to interpretation by an experienced contractor? Isn’t this one-sided on the part of project owners — disclosing site data for their own benefit and protection while deriding any use of that data by the contractor? Your comments are welcomed.