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    Government Contracting Database

    Differing Site Conditions – Rain

    The Boards and Courts have held that heavy rains, when interacting with site conditions created by the failure of government-designed drainage or other water protection measures to perform as intended, creates a compensable differing site condition. See Manuel Bros. v. United States, 55 Fed. Cl. 8, 45 (2002), aff’d, 95 F. App’x 344 (Fed. Cir. 2004) (citing In re D.H. Dave and Gerben Contracting Co., A.S.B.C.A. No. 6257, 1962 B.C.A. (CCH) ¶ 3493); Phillips Construction Co. v. U.S., 394 F.2d 834 (Ct.Cl. 1968); Johnson, Drake and Piper, Inc., ASBCA Nos. 9824, 10199, 65-2 BCA 4868. These cases clearly recognize the distinction between rain, on the one hand, and the consequences of rain when interacting in combination with other site conditions created by the government, on the other. That is, they recognize that falling water, and standing water resulting from inadequate drainage, are two very different things. Compare Cinusa Contractors, Inc., ENGBCA No. 4637, 85-3 BCA 18,258 (where the result was different because the government did not purport to design a drainage system and the drainage responsibility was specifically imposed on the contractor).  

    In D. H. Dave and Gerben, the government did not disclose specific water information in its possession (including auger borings), but incorporated in the drawings only that information which it deemed important to the design and construction of the project. A.S.B.C.A. No. 6257, 1962 B.C.A. (CCH) ¶ 3493. The contractor was to trench for utilities; to grade, compact and pave; and as part of the work was to construct a site drainage system in accordance with the government design. Id. Heavy rains occurred and, because of a lack of adequate drainage in the site area, water backed up onto the site, saturating the subgrade and making the contractor’s ability to meet the subgrade compaction requirements impossible while the condition persisted. Id. 

    The Board held that the contractor was entitled to relief under the changed conditions (now Differing Site Conditions) clause, as well as the Changes clause. Id. In so holding, it addressed the government’s contention that the contractor was not entitled to compensation for delays caused by rain, as follows: 

    We note here that excessive rainfall is not in and of itself a changed condition for which price and time adjustments are to be made under the Changed Conditions article. Likewise excessive rainfall is not in and of itself a suspension of work nor is the contracting officer under a duty to suspend merely because of such rainfall. But when as here excessive rainfall in interaction with a drainage area makes specified performance impossible, a changed condition does exist and the contracting officer, if he wants work done, must change the specifications so as to make it possible. 

    Id. 

    Updated: June 22, 2018 

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