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Thursday, November 15, 2012 02:44 am


Differing Site Conditions

Appeal of: NDG Constructors, 2012 ASBCA No. 57328 Lexis 85 (Aug. 21, 2012)

A contractor's subsurface surprise didn't rise to the level of a Type I differing site condition because geotechnical reports were sufficiently indefinite as to what type of soil would be encountered and where.

On a job to replace a waterline at Ellsworth Air Force Base in South Dakota, NDG Constructors (NDG) and its excavation subcontractor encountered an alleged Type I differing site condition: soil conditions that were characteristically different as well as wetter than shown in the contract documents. The U.S. Army Corps of Engineers (Corps) denied NDG's claim for an equitable adjustment of $146,000 and a time extension of 9 days. The Corps asserted that no "material other than that which is described in the RFP was encountered," and that the geotechnical reports it provided warned NDG of the exact conditions it encountered. The Armed Services Board of Contract Appeals agreed.

Report said 'at some point', not 'at a specific point'

First, NDG's claim that the soil profile differed failed because the contract documents did not precisely indicate where the soil would transition from one type to another.

NDG had be [...]

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