A government repair and alteration contract required installing new shower units to existing supply piping. Upon demolishing the shower wall, the contractor discovered that due to the location of the existing supply lines it would have to remove and replace the pipes. The contractor, who had not attended the government’s pre-bid site visit, claimed a differing site condition and asserted that the condition would not have been visible at a site visit. Other contractors, however, who had attended the pre-bid site visit testified that the government had removed a portion of the shower wall exposing the condition in question. Given this testimony, the Armed Services Board of Contract Appeals found that the condition was neither unforeseeable nor unknown, thus preventing the contractor’s recovery for either a Type I or Type II differing site condition. American Construction & Energy, Inc., ASBCA No. 1770972 (November 27, 2000). (* Article by Suzanne Harness, Esq., Seyfarth Shaw law firm.)
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 3, No. 5 (Aug 2001).