'ACT OF GOD,' Not Differing Conditions, Delayed Work and Increased Costs

Tuesday, January 08, 2019 9:31 am
January 2019 - Volume 41 Number 1

Differing Site Conditions

Appeal of: Tidewater, Inc., 2018 ASBCA Lexis 308 (November 2, 2018)

A contractor failed to convince the Armed Services Board of Contract Appeals that above-average rain and overly saturated soil amounted to differing site conditions for which it could recover damages.

In September 2012, the U.S. Army Corps of Engineers (Corps) awarded Tidewater, Inc. (Tidewater) a task order (as part of a multiple award, indefinite-delivery, indefinite-quantity contract) to renovate a building at Barksdale Air Force Base in Louisiana and “create a complete and usable facility” for a dental facility. The Corps estimated the project was worth more than $5 million. The project performance period was 730 calendar days.

In June 2015, Tidewater gave notice of differing site conditions (DSC), stating that “the soil conditions when it sought to install piers, and obtain fill, for a building addition differed materially from those indicated in contract documents due to excessive rainfall, forcing it to change its construction method and incur additional performance time.”

Tidewater submitted a certified claim seeking $726,669 in damages and a time extension of 215 additional calendar days due to weather and Type I DSC.

In addition, Tidewater claimed that it was delayed 40 days because it was unable to obtain the required fill due to wet conditions.

The contracting officer (CO) denied the claim, alleging that Tidewater failed to demonstrate essential elements of a Type I DSC. Tidewater appealed, and the Corps moved for a motion for summary judgment. The Board granted that motion for three re[..]