Government Contracting Database
Differing Site Conditions – Proof Requirements
Type I Elements:
The Court of Federal Claims provides the following comprehensive outline to proving a Type I differing site condition:
In addition to making a threshold showing of timely and proper notice, a contractor seeking to “establish entitlement to an equitable adjustment by reason of a Type 1 differing site condition … must prove, by a preponderance of the evidence, ‘that the conditions indicated in the contract differ materially from those [the contractor] encounter[ed] during performance.’ ”
H.B. Mac, 153 F.3d at 1345 (quoting in part Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1581 (Fed.Cir.1987)) (quotations omitted); see also Randa/Madison Joint Venture III v. Dahlberg, 239 F.3d 1264, 1274 (Fed.Cir.2001) (same).
To determine whether plaintiff has met this burden, “the court must place itself into the shoes of a ‘reasonable and prudent’ contractor,” P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 917 (Fed.Cir.1984), “and ascertain whether the conditions actually encountered were reasonably unforeseeable on the basis of all the information available to the contractor at the time of bidding,” Spirit Leveling Contractors v. United States, 19 Cl.Ct. 84, 94 (1989).
When applying this standard, courts require that the contractor establish by preponderant evidence “six indispensable elements … for each [differing site condition] claim”: (1) that the contract affirmatively indicated subsurface conditions upon which the contractor’s claims are based; (2) that the plaintiff acted as a reasonably prudent contractor in interpreting the contract documents; (3) that the contractor reasonably relied on the indications of subsurface conditions in the contract; (4) that the subsurface conditions actually encountered differed materially from subsurface conditions indicated in the contract; (5) that the subsurface conditions encountered were reasonably unforeseeable; and (6) that the contractor’s claimed excess costs were solely attributable to the materially different subsurface conditions. Weeks Dredging & Contracting Inc. v. United States, 13 Cl.Ct. 193, 218 (1987). Thus, a contractor must prove more than a mere difference between the information in the bid documents and the conditions encountered at the contract site. The reasonableness of the contractor’s conduct prior to submission of its bid and during performance and the absence of a contributing or concurrent cause of the contractor’s alleged damages must be proven as well.
Renda Marine, Inc. v. United States, 66 Fed. Cl. 639, 651 (2005)
Type II Elements:
The Court of Federal Claims has also discussed the elements of a Type II differing site condition by analyzing several precedent cases and stated the following:
Randa/Madison defines Type II differing site conditions as unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract.
Randa/Madison Joint Venture III v. Dahlberg, 239 F.3d 1264 (Fed.Cir.2001) (quoting 48 C.F.R. § 52.236–2 (2000)). The Federal Circuit noted further that there are three elements required to prevail on a Type II differing site conditions claim:
The unknown physical condition must be one that could not be reasonably anticipated by the contractor from his study of the contract documents, his inspection of the site, and his general experience[,] if any, as a contractor in the area.
Id. (quoting Perini Corp. v. United States, 381 F.2d 403, 410 (Ct.Cl.1967)) (alteration in original).
This court has sometimes adopted a different three-element test for a Type II differing site conditions claim. See, e.g., All Power, Inc. v. United States, 60 Fed.Cl. 679, 685 (2004) (“A Type II differing site condition depends on the existence of three elements—(1) the condition must be unknown to the contractor; (2) unusual; and (3) materially *457 different from comparable work.” (citing Kiewit Constr. Co. v. United States, 56 Fed.Cl. 414, 417 n.8 (2003))); Lathan Co. v. United States, 20 Cl.Ct. 122, 128 (1990) (“A Type II claim requires plaintiff to show three elements. First, plaintiff must show that it did not know about the physical condition. Second, plaintiff must show that it could not have anticipated the condition from inspection or general experience. Third, plaintiff must show that the condition varied from the norm in similar contracting work.” (citing Perini, 381 F.2d at 410; S.T.G. Constr. Co. v. United States, 157 Ct.Cl. 409, 415, 1962 WL 9272 (1962))). For the court’s purposes here, the court adopts the three-element standard stated in Randa/Madison, but notes the utility of the other formulations employed by this court.
Extreme Coatings, Inc. v. United States, 109 Fed. Cl. 450, 456–57 (2013)
Updated: June 21, 2018