Payne Hackenbracht & Sullivan
Differing Site Conditions - Type I
In order to recover for a Type I differing site condition, a contractor must establish that it encountered subsurface or latent physical conditions differing materially from those indicated in the contract documents. In essence, the underlying issue in a Type I claim is whether the contractor could reasonably have anticipated the conditions encountered from a knowledgeable interpretation of the contract documents, its inspection of the site, and its general experience as a contractor. See, Foster Construction, C.A. v. United States, 193 Ct.Cl. 587, 435 F.2d 873 (1970); Perini Corp. v. United States, 180 Ct.Cl. 768, 381 F.2d 403 (1967); Kaiser Industries Corp. v. United States, 169 Ct.Cl. 310, 340 F.2d 322 (1965). As the Court explained in Mojave Enterprises v. United States, 3 Cl.Ct. 353, 357 (1983), a compensable Type I condition is one that is "reasonably unforeseeable on the basis of all the information available to the contractor at the time of bidding." See also T.G. Scholes, Inc. v. United States, 174 Ct.Cl. 1215, 357 F.2d 963, 969 (1966).
Moreover, express representations regarding the nature of conditions to be encountered during performance are not essential to establishing entitlement to an equitable adjustment. See Pacific Alaska Contractors, Inc. v. United States, 193 Ct.Cl. 850, 436 F.2d 461, 469 (1971). Rather, all that is required is that there be enough information from which physical conditions can be inferred. See Woodcrest Construction Co. v. United States, 187 Ct.Cl. 249, 408 F.2d 406 (1969), cert. denied, 398 U.S. 958 (1976). Indeed, a contract indication may be proven by inferences or implications, see Foster, 435 F.2d at 881, and need only be "enough to impress or lull a reasonable bidder." Stock & Grove, Inc. v. United States, 204 Ct.Cl. 103, 493 F.2d 629, 645 (1974). Thus, a contractor may recover where it concludes on the basis of the available information that latent conditions will be more favorable than those ultimately encountered. Pacific Alaska, 436 F.2d at 469.
(See Differing Site Conditions - Proof)
(See Differing Site Conditions Clause, Narrative)
(See Differing Site Conditions - Notice)