Government Contracting Database
Differing Site Conditions – Implied Representations
It is well-settled that a solicitation can make implied representations about site conditions, if those conditions can be fairly inferred by a reasonable and prudent contractor from the information which is contained in (or omitted from) the documents (i.e., the Contract “indications”), and that the representation need not be express in order for a contractor reasonably to rely upon it. In Re Randa/Madison Joint Venture III, ASBCA No. 49452, 99-2 BCA ¶ 30553 (citing Foster Constr CA. v. United States, 435 F.2d 873 (Ct. Cl.1970); Titan Atlantic Constr. Corp., ASBCA No. 23588, 82-2 BCA ¶ 15,808).
It is well-settled that the very design of, and contractually established requirements for, the item to be built, can constitute a representation of the conditions at the site. Where the government designs work which cannot be accomplished under wet conditions, and does not incorporate in the design of the item to be built any features intended to deal with water, then the absence of such features amount to a representation that the government does not believe water conditions will be encountered. Kinetic Builders, ASBCA No. 32627, 88-2 BCA ¶ 20,657; D. H. Dave and Gerben Contracting Co., 1962 BCA ¶ 3943 (ASBCA 1962). Cf. Portable Rock Production Company, Inc. v. U.S., 4 Cl.Ct. 495 (1983); L. L. Hall Construction Co.,, 62 BCA ¶ 3590 (ASBCA 1962); M. A. Santander Construction, Inc., ASBCA No. 15882, 76-1 BCA ¶ 11, 798. In the latter three cases, the Board (or the Court) found that features integrated into the design of the paved or concrete structure to deal with a condition of water, e.g., subgrade reinforcement, waterproofing membranes, weep holes, gutters, etc., were an indication of the likelihood of encountering water.
It has been held that a provision in the Contract Documents for government-designed drainage is a representation that the drainage will accomplish the result of preventing standing water on the site, and that the failure of the drainage system to accomplish that result creates a Type I Differing Site Condition, even if the source of the water is heavy rainfall. D. H. Dave and Gerben, supra; A. Geris, Inc., ENGBCA No. 2869, 68-2 BCA ¶ 7320 (where the Board held that a general protection of work clause was insufficient to negate the contractor’s right to rely on drainage features shown in the contract plans and drawings).
The absence of dewatering specifications was addressed in Appeal of Manoy Eng’g Co., ASBCA No. 3518, 57-2 BCA ¶ 1478. In that case, no subsurface information was provided to an excavation contractor, and he encountered unanticipated hard rock which ultimately required blasting. The government took the position that the hard rock was not abnormal in the area. The ASBCA held that, in the absence of subsurface information, the contractor was entitled to rely on what is shown in the drawings and specifications and on what is normal in work of the character called for. The Board held that, if the government believed that encountering hard rock requiring blasting was a “normal” condition, it should have followed its normal practice of delineating the blasting methods in the specifications.
In F. D. Rich Company, Inc., ASBCA No. 14023, 75-2 BCA ¶ 11,537, this Board was even more explicit on dewatering requirements. In that case, the government had not undertaken to design the drainage system, and the Board stated that “(a) contractor is, of course, expected to provide drainage during construction.” 75-2 BCA 11,537 at p. 55,068. Significantly, the Board went on: “Unless specified in the contract, this does not include elaborate dewatering systems …” Id. (emphasis supplied).
Updated: July 11, 2018