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Board Denies Differing Site Condition Because Contractor Did Not Timely Notify the Government

Posted on November 25th, 2015 by

On November 6, 2015, the Armed Services Board of Contract Appeals denied a contractor’s claim based on a differing site condition pursuant to FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984 ). The Board held that the Contractor did not give timely notice to the CO of either ( 1) subsurface or latent physical conditions at the site which differ materially from those indicated in the contract, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract. The Board noted that the differing site condition clause “requires that such notice be given promptly and before the conditions are disturbed.”

Unfortunately, the contractor did not notify the Government before disturbing the differing site conditions. During the Board proceeding, the contractor presented photographs of the alleged differing site conditions. However, the Government’s expert questioned whether these photographs actually showed the conditions alleged. The Board thus ruled that the lack of notice “prejudiced the government because it was prevented from undertaking its own site investigation before the condition was disturbed.”

This case illustrates when when a contractor’s failure to provide notice to the Government is fatal to its claim. While a contractor’s failure to provide notice under the differing site condition clause, suspension of work clause or changes clause is always fatal to a contractor’s claim, in this case it was because the Government could show it was “prejudiced” or “harmed” by the lack of notice. The harm being the Government’s inability to defend against a differing site condition claim because the evidence has been disturbed or eliminated.

Lean Construction and Engineering Co., ASBCA (November 6, 2015)

 

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