Payne Hackenbracht & Sullivan
Differing Site Conditions - Proof Requirements
According to the tests established by the Courts, in order to recover under the Differing Site Conditions clause, a contractor must first show that the conditions it encountered differed materially from those indicated in the contract documents. Wm. A. Smith Contractinq Co. v. United States, 188 Ct. Cl. 1062, 1088, 412 F.2d 1325, 1339 (1969). Second, a contractor must show that the changed condition could not reasonably have been anticipated from the site examination and review of the contract documents. Wm. A. Smith ContractingCo., supra, 188 Ct. Cl. at 1086, 412 F.2d at 1338. Third, the contractor must show that it relied on the contract documents. Dale Ingram, Inc. v. United States, 201 Ct. Cl. 56, 72, 475 F.2d 1177, 1185 (1973). Finally, the contractor must show that it was damaged as a result of the material variation. Cosmo Construction Co. v. United States, 196 Ct. Cl. 463, 469-70, 451 F.2d 602, 605-06 (1971).
Because the "material difference" required to be shown in a Type I differing site condition claim is not capable of objective measurement, the courts will look to numerous factors from which the necessary finding may be made. Thus, in Roscoe-Ajax Construction Co. v. United States, 458 F.2d 55 (Ct.Cl. 1972), the Court of Claims noted that a contractor may establish the required material difference through evidence that, in dealing with the unanticipated conditions, it either performed a greater amount of work or employed methods different from those originally contemplated. See also Dunbar & Sullivan Dredging Company, Eng BCA 3165 et al., 73-2 BCA 10,285 (1973); Maitland Brothers Company, ASBCA 24032, 84-2 BCA 17,463 (1984); Roger J. Au & Son, Inc., IBCA 1303-9-79, 84-1 BCA 17,094 (1984).
(See Differing Site Conditions Clause, Narrative)
(See Differing Site Conditions - Notice)