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Risk Of Rock Was Part Of The Deal Where Contract Was Silent

Monday, January 03, 2011 03:06 am


Differing Site Conditions

United Constructors, LLC v. United States, 2010 U.S. Claims Lexis 811 (Oct. 18, 2010)

A contractor who chose to shoulder the risk of the amount of subsurface rocks it might encounter could not "undo its choice" under a differing site conditions claim.

United Contractors (United) sought additional compensation for removal of small boulders (i.e., those smaller than one-half cubic yard in volume but bigger than three inches in diameter) while excavating a utility trench on a campground construction project in South Lake Tahoe, California. The contractor claimed that it encountered many more small boulders than the bid documents predicted. United filed a Type I differing site condition claim (alleging that site conditions different materially from those indicated in the contract). However, United failed to prove that a reasonable contractor would have made the same site condition inferences it did.

The bid documents estimated 25 cubic yards (or 1 to 2 percent of the total excavation volume) of large [...]

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