A Type I differing site condition arises when the conditions encountered differ from what was indicated in the contract documents. It is distinguished from a Type II differing site condition, which arises when the conditions encountered are of an unusual nature and differ materially from those normally encountered in the kind of work contemplated by the contract. In order to be eligible to recover for a Type I differing site condition, a contractor must first prove, as a threshold matter, that the contract contained some identification of the conditions to be encountered at the site. The contractor must then prove by a preponderance of the evidence that the conditions encountered during the contract performance differed materially from the conditions indicated in the contract. To carry this burden, the contractor must demonstrate that the conditions encountered were not reasonably foreseeable in light of all information available to the contractor when bidding, that the contractor reasonably relied upon its original interpretation of the contract, and that the contractor suffered damages as a result of the material variation between the conditions expected and those encountered.
The Federal Circuit recently addressed a Type I claim made by a dredging contractor. The Court denied the claim on the basis that the information available to the contractor would have revealed the type of conditions that gave rise to the claim. Furthermore, the government located a spreadsheet prepared by the contractor that identified the alleged differing condition.
For further questions, please contact Matt Hjortsberg at 410-583-2400 or at hjortsberg@bowie-jensen.com
