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Decisions Of The Boards Of Contract Appeal: Fear Of what Lurks Below Doesn't Constitute An Unknown C

Tuesday, March 01, 2011 03:54 am


Differing Site Conditions

Appeals of: C.E.M.E.S. S.p.A., 2010 ASBCA Nos. 56253, 57355 Lexis 117 (Dec. 29, 2010)

The suspicion that dangerous materials might be encountered sub-surface is not enough to prove differing site conditions. You have to actually encounter something.

The U.S. Army Corps of Engineers, Europe (Corps) hired C.E.M.E.S. S.p.A (CEMES) for building renovation, road repair and general environmental work in Livorno, Italy. During the project, CEMES claimed it was forced to change excavation methods, at increased cost, due to the risk of unexploded ordnance (UXO) at the site. CEMES argued that the government should recognize a differing site condition and grant an equitable adjustment in the amount of 100,000 Euros for "supplemental work." The claim was denied. The Armed Services Board of Contract Appeals found the proof insufficient to support CEMES's contention that there was a reasonable risk of encountering UXO.

Before digging at the project site, CEMES requested that the Corps provide a War Bombs Reclamation Certification and delayed the excavation work while waiting for that document. The Corps disagreed that there was a known history of e [...]

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