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Foreknowledge Of Some Site Risks Doesn't Make You All-knowing

Thursday, December 02, 2010 01:28 am


The fact that a contractor was obligated to plan for predictable (if unusual) site condition changes didn't bar a claim that the changes it actually encountered were both unusual and unpredictable.

The contract at issue in a recent case, Commonwealth of Virginia, et al v. AMEC Civil LLC, 2010 Va. Lexis 230 (Sept. 16, 2010), described Type II differing site conditions as unknown, unforeseeable and unusual physical conditions.

The qualifier "unknown" was a key point in the Virginia Supreme Court's decision in favor of the contractor. Remember, a Type II differing site condition is one that differs materially from what is ordinarily encountered and recognized as inherent to the work. To qualify, "the unknown physical condition must be one that could not be reasonably anticipated by the contractor from ... study of the contract documents ... inspection of the site, and ...general experience." Randa/Madison Joint Venture III v. Dahlberg, 239 F.3d 1264, 1274 (Fed. Cir. 2001). Further, the contractor must show "it did not [know] about the physical condition [and] could not have anticipated the condition from inspection or general experience." Walser v. United States, 23 Cl. Ct. 591, 593 (1991).

Beware of what you 'know'

In the instant case, contractor AMEC Civil, LLC  (AMEC) alleged that six months of [...]

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