Payne Hackenbracht & Sullivan

Differing Site Condition - Type II

Recovery on a Type II claim requires the contractor to show that it encountered "unknown physical conditions . . . of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for" in its contract. For a contractor to prevail in a Type II differing site condition claim, it must show by a preponderance of evidence the following three elements: (1) that it did not know about the physical condition; (2) that it could not have anticipated the condition from inspection or general experience; and (3) that the condition varied from the norm in similar contracting work. Walser v. United States, 23 C1. Ct. 591 (1991); Lathan Co. v. United States, 20 C1. Ct. 122 (1990). With respect to the requirement that the conditions vary from the norm for the area and type of work, conditions have been considered unusual where the anticipated materials have appeared in higher proportions or degrees than reasonably anticipated. Servidone Constr. Corp. v. United States, 19 C1. Ct. 346, 366 (1990), aff'd 931 F.2d 860 (Fed. Cir. 1991).

In establishing a Type II claim the claimant carries a heavier burden since there is a greater duty to conduct pre-bid inquiries or reasonable site inspections inasmuch as recovery is available only if the condition is unknown, which means it would not have been revealed upon inquiry or during a reasonable site investigation. Huntington Construction, Inc. , ASBCA No. 33526, 89-3 BCA par. 22,150.