By Bruce Jervis
Unforeseen site conditions are easy to allege but difficult to prove. Under a typical differing site condition clause, a physical condition is compensable under either of two circumstances. The contract documents made an affirmative representation, relied upon by the contractor, which proved to be inaccurate. Or, the condition is so unusual for the location that it could not have been reasonably foreseen.
The latter situation, a “Type II” differing site condition, is particularly challenging. One contractor recently argued that the difficulty it experienced in the field proved the unusual nature of the condition. The contractor had used the same equipment, material and methods to drive and extract all temporary sheet pilings. It experienced difficulty in removing some of the pilings and reasoned that it was from the excessively strong adhesive qualities of some of the soils, a highly unusual condition in that area.
This claim was rejected as a “circular argument,” which proved nothing regarding the physical conditions at the site. Objective evidence is needed to establish an actual condition. No determination of a “differing” condition can be made without proof of the actual condition. Performance difficulties, in themselves, are insufficient.
What is your opinion? Does this ruling mandate expert opinion on every site condition claim? Should performance difficulties be persuasive evidence of a differing site condition? Your comments are invited.
