Government Contracting Database
Differing Site Conditions – Type I
The Court of Federal Claims provides the following comprehensive outline to prove 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)
Updated: June 22, 2018