Editor’s Notes

A classic claim for a differing site condition is easy to summarize: the actual physical conditions in the field differed from the conditions indicated in the contract documents. In application, however, this can become difficult.

The overriding issue is the representations in the contract documents. Project owners sometimes make empirical statements whose accuracy or reliability they then disclaim. Courts are skeptical of this duplicity. More problematic is silence regarding the details of site conditions. To what extent are contractors allowed to interpret, draw inferences, and make conclusions?

On a recent federal project, the contract said excavated material could be reused in a levee embankment if the material met the performance standards specified in the contract. The contractor deduced that since subgrade material was suitable to support the levee embankments, it would not be a problem if some of that material were used in the embankments themselves. This was a mistake. The contract’s silence regarding the characteristics of the subgrade material was not a representation of the suitability or constructability of that material.

The other case in this issue involved an agency’s slow response to a contractor claim. Internal staffing issues did not justify a late final decision on the claim.




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