Govt. Couldn't Disclaim Responsibility For Its Silence On Groundwater

Friday, April 27, 2018 6:22 am
May 2018 - Volume 40 Number 5

Contract ---Differing Site Conditions

Appeal of: R.L. Persons Constr., Inc., 2018 ASBCA Lexis 74 (March 15, 2018)

A government agency that failed to properly disclose the presence of groundwater in a construction site borrow pit will have to face a contractor---and its differing site conditions claims---in further litigation.

In July of 2012, the U.S. Army Corps of Engineers (Corps) issued a solicitation for the construction of a slurry trench and two berms along the Ohio River near Cairo, Illinois. The purpose was to “reinforce the levee system by reducing the threat of groundwater underseepage … between the base of the levee and the natural ground elevation.” R.L. Persons Construction, Inc. (Persons) submitted a proposal and was awarded the contract in October 2012.

The contract documents included drawings that depicted the river’s annual stage fluctuation as well as boring profiles for both the slurry trench site and the borrow pit. (The pit, provided by the Corps for the contractor’s use, contained earthen materials needed for the project and was located about a half mile from the slurry trench site.)

According to Persons, these contract documents presented ambiguous information about the presence of groundwater. It submitted a request for equitable adjustment related to groundwater it encountered during its work on the slurry trench and berms, but the Corps denied the request. The Armed Services Board of Contract Appeals granted Persons’ appeal of that denial, finding that genuine issues of material fact concerning interpretation of the contract remained. The Board dismissed the Corps’ summary judgment motion.

Contract silence was not a pro[..]