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Often contractors seek to recover costs resulting from site
conditions which differ from what was anticipated in the
contract documents. However, as indicated in Guy F. Atkinson
Construction Co. v. Washington Metro. Area Transportation
Auth., 2006 U.S. Dist. Lexis 53468 (D.D.C. 2006), if
the contract documents extensively detail expected and potential
site problems, the contractor may have a difficult time
recovering for the differing conditions which it encounters.
In Atkinson, the contract for a tunneling project consisted of
general provisions and standard specifications, as well as
special provisions. The special provisions included a geo-technical
design report (Appendix G) which detailed anticipated
subsurface conditions and commented extensively on
methods of tunneling, soil types, and water control for the
project. Of particular interest, Appendix G addressed subsurface
conditions in the area later in dispute in detail, advising
bidders that the particular area would require dewatering of
the sand and possibly chemical stabilization. To combat
potential water problems on the project, the contract required
installation of a dewatering system to facilitate tunnel excavation,
as well as devices to monitor water control, and required
procedures for the control of groundwater to be performed
under the supervision of a specialist. Responsibility
for the design, installation, and monitoring of the dewatering
system rested solely with the contractor. Moreover, the contract
mandated that the contractor collect and submit water
monitoring data, detailed dewatering plans, and the qualifications
of its specialist to the owner for approval, and emphasized
that dewatering criteria would be rigidly enforced.
Despite high water readings and the potential for water inflows
as described in Appendix G, the contractor’s tunneling
work did not encounter any difficulties at first. Hence, the
contractor continued tunneling until it first observed water
flowing into the tunnel. Due to continued water inflows
thereafter, the contractor’s tunneling progress eventually
slowed almost to a stop. The contractor then informed the
owner that the water entering the tunnel constituted a differing
site condition—the amount of water inflows far exceeded
the amounts originally indicated in the contract. The owner
denied this claim. The contractor made two other claims, but
the owner rejected both. After the owner rejected the third
claim (reaffirming its position that the water was indicated in
the contract documents), the contractor completed the tunneling
without encountering any further difficulties.
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Pursuant to the contract, the contractor submitted a claim to
the owner for additional compensation as a result of the differing
site conditions and additional wells. When the owner
denied the claim, the contractor appealed to the board of contract
appeals. The board unanimously denied the contractor’s
claim, and the contractor filed suit to overturn the
board’s decision.
The court determined that in order to recover on its differing
site conditions claim, the contractor had to show the following:
the contract documents represented conditions which
formed the basis of the contractor’s claim; the contractor
acted as a reasonably prudent contractor in interpreting the
documents; the contractor reasonably relied on the contract’s
representations; the conditions actually encountered
differed materially from those represented in the contract;
and the contractor’s claimed excess costs were attributable
to the materially different conditions. However, the court
concluded that the contractor could not show that the tunnel
conditions actually encountered differed materially from
those represented in the contract. The contract documents
were found to be replete with indications warning the contractor
of the precise conditions actually encountered. The
court found that Appendix G described in great detail, the
locations, the expected tunneling problems, and specifically
addressed in extensive detail the subsurface conditions of
the areas in dispute. In addition, the court determined that
there was no evidence supporting the contractor’s contention
that the water encountered did not come from the water table
expressly indicated in Appendix G. Accordingly, the court
held that substantial evidence supported the board’s conclusion
that the water inflows came from a source indicated in
the contract, and therefore, were not conditions differing
materially from the contract.
As Atkinson demonstrates, the success of a differing site
conditions claim typically depends on how well the contract
documents describe the potential for such conditions. Contractors
that are provided with extensive details of expected
site problems in their contracts should be aware that they
will be hard-pressed to prove that they were surprised by
any difficult conditions encountered in their work.
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