When it comes to site condition information, there are affirmative representations by project owners and there are subjective inferences by contractors. The former can lead to successful differing site condition claims. The latter seldom do.
A federal contract allowed the use of excavated materials for constructing embankments if the materials met certain moisture and compaction specifications. The contract described the intended material as “shelly sand,” which the contractor believed to be suitable based in part on the contractor’s prior excavation experience in the area. However, the contract also referenced official soil classifications, which indicated the material would be unsuitable. The Court of Federal Claims had to judge the reasonableness of the contractor’s interpretation of the site condition information.
The second case in this issue involved subcontract shop drawing submittals. The subcontract, prepared by the prime contractor, described the submittal process in a contradictory manner. And the prime contractor was not cooperative in resolving the conflict. The Wyoming Supreme Court had to determine which party breached the subcontract.
The third case addressed “unusually severe weather”—weather conditions that entitle a contractor to an extension of time for excusable delay. Is weather deemed unusually severe if it impacts the work? Or is the determination based on a comparison to historic weather records for the specific date and location?
