Payne Hackenbracht & Sullivan
Unintentional Misrepresentation as Basis for Claim
In S&M - Traylor Bros. (Joint Venture), Eng BCA 3878, 82-1 BCA 15,484 (1982), the board held that an innocent nondisclosure is sufficient to establish breach of contract:
"The Board does not believe that Respondent deliberately set out to mislead or deceive bidders. The record tends to indicate that Respondent, in fact, was as astonished as anyone when the [unexpected conditions developed]."
Id. at p.76,787. Therefore, even assuming that the Government was unaware of the importance of the withheld information to Appellant's assessment of its contract obligations, it may not escape liability for its misleading nondisclosure. Because Appellant was misled to its detriment by the Government's nondisclosure of vital site information, it is entitled to recover on a breach of contract theory. See Hardeman-Monier-Hutcherson v. United States, 458 F.2d 1364 (Ct.Cl. 1972).