Government Contracting Database
It is well-settled that “a contractor may rely exclusively on the indications of subsurface conditions contained in the contract and is not required to make additional investigations of his own” to verify the accuracy of subsurface information. Western Contracting Corporation, Eng BCA 3835 et al., 82-1 BCA ¶ 15,486 (1982); Renda Marine, Inc. v. United States, 66 Fed. Cl. 639, 653 (2005) (citing Foster Construction, 193 Ct.Cl. 587 (1970)). Nor is a contractor obligated to make a “scientifically educated and skeptical analysis of the contract.” Stock & Grove, Inc. v. United States, 493 F.2d 629 (Ct.Cl. 1974); Southern Paving Corp., AGBCA 74-103, 77-2 BCA ¶ 12,813 (1977). Thus, a contractor is not required to hire its own geologist or make extensive engineering or scientific investigations prior to bidding. Magnus Pac. Corp. v. United States, 133 Fed. Cl. 640, 684 (2017); Minnis & Wright & Garn L. Moody, AGBCA 332, 74-2 BCA ¶ 10,685 (1974); Slattery Associates, Inc., Eng BCA 3922, 80-2 BCA ¶ 14,489 (1980); L.J. Casey Co., AGBCA 75-148, 76-2 BCA ¶ 12,196 (1976). As the board in Pacific Western Construction, Inc., DOT CAB No. 1084, 82-2 BCA ¶ 16,045 (1982), noted:
The test is not that a contractor will be held to have constructive knowledge of a site condition if that condition would have been apparent only to a soils expert or a geologist upon a site examination.
Rather, the test is whether the condition would have been apparent to an ordinary contractor or a layman… A construction contractor is not an engineer or geologist and is not held to the professional standards of such. On the other hand, when the Government undertakes to make soils data available, it is to be expected that the data will have been gathered and promulgated by one having some expertise in soils and geology; such a person must be held to a greater standard of care than the average contractor.
82-2 BCA ¶ 16,045 (citation omitted).
A contractor is therefore entitled to reasonably rely on the plain indications of subsurface conditions included in the contract as the most reliable and specific indications of such conditions. Renda Marine, Inc. v. United States, 66 Fed. Cl. 639, 653 (2005); United Contractors v. United States, 368 F.2d 585, 596 (Ct.Cl. 1966). As the Board in Gordon H. Ball, Inc., Eng BCA No. 3563, 78-1 BCA ¶ 13,055 (1976) noted, “the law does not require construction contractors to make circuitous and convoluted deductions from clues and indirect evidence when bidding. See Fluor Corp., Eng BCA 2514, 2515, 65-2 BCA ¶ 4983 (1965).” 78-1 BCA ¶13,055 at p.63,747. Indeed, it is well-settled that a reasonable bidder is not required to anticipate the worst possible conditions in evaluating contract indications of site conditions. See Servidone Const. Corp. v. United States, 19 Cl. Ct. 346, 374 (1990), aff’d, 931 F.2d 860 (Fed. Cir. 1991) (citing Redman Service, Inc., ASBCA No. 8853, 1963 BCA ¶ 3897 (1963)).
Updated: July 5, 2018