A Discussion of differing site conditions usually focuses on the degree of difference. To what extent did the actual conditions in the field differ from the representations in the contract documents? Or, to what extent did the conditions in the field differ from what an experienced contractor could reasonably anticipate? Rarely is there any discussion of what constitutes a site “condition.”
The Virginia Supreme Court recently addressed this question. The Court said the duration of high water could not be a “Type I” differing site condition regardless of deviation from representations in the contract documents. The duration of the high water was not a latent physical condition which existed at the time of contract formation. Fortunately for the contractor, the Court ruled that the duration of the high water was so unprecedented it could not have been anticipated and constituted a “Type II” differing site condition.
The Court said the duration of the high water was not a natural occurrence because the lake was dammed for flood control purposes. Still, this raises some interesting questions. If the duration of the event was not a “condition” for purposes of a Type I claim, why was it a “condition” for Type II purposes? If the duration of an event can be a condition, how about other natural occurrences, the results of which humans might have some opportunity to mitigate or influence? Is there not a danger that what have traditionally been considered excusable weather events get morphed into compensable differing site conditions?
As always, I welcome your thoughts and comments on this topic. Featured in next week's issue of Construction Claims Advisor . . .
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Bruce Jervis, Editor
Construction Claims Advisor