When confronted with a costly site condition, contractors are sometimes quick to claim it is a compensable “differing” site condition. This raises the question, “differing” from what? As a general rule, the condition must differ from an affirmative representation in the contract documents; however, silence or failure to alert is not a positive indication. And, the contract documents, when read as a whole, may have been sufficient to put an experienced contractor on notice of the condition it encountered.
One contractor had to work around an existing subsurface telecommunications line it believed to be exposed and free from concrete encasement. The line turned out to be encased, which was much more costly to work around. The contract documents, however, made no representation the line was free from encasement. And, the depiction of the line in the drawings indicated a “ductline,” a term known in the industry to refer to concrete encasement. This was not a differing site condition.
The other case in this issue involved an unbalanced bid. The New Jersey public project owner requested unit prices for 232 line items of work. The apparent low bidder inflated the price of many work items that would occur early in the project while bidding a nominal $1 on many tasks at the end of the project. This was a classic front-loaded bid, which put the owner at risk of a contract balance insufficient to complete work. The bid was materially unbalanced and had to be rejected as nonresponsive.
