Payne Hackenbracht & Sullivan
Site Investigation
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 at p.76,806 (1982); Foster Construction, 193 Ct.Cl. 587 (1970); Mann Construction Co., Inc., AGBCA 76-109, 80-2 BCA 14,674 (1980). 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. 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 at p.79,512-513 (citation omitted).
A contractor is therefore entitled to rely on the plain indications of subsurface conditions included in the contract as the most reliable and specific indications of such conditions. United Contractors v. United States, 368 F.2d 585, 596 (Ct.Cl. 1966); Morrison-Knudsen Co. v. United States, 345 F.2d 535, 539 (Ct.Cl. 1965). As the Board in Gordon H. Ball, Inc., Eng BCA 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 Redman Service, Inc., ASBCA 8853, 1963 BCA 3897 (1963).
(See FAR 52.236-3 - Investigation and Conditions Affecting the Work)
(See Differing Site Conditions - Proof)