The contractor said it encountered a differing site condition. The site was muddier than expected. The ASBCA agreed the site was a muddy mess. Nevertheless, the site was not muddier than the government indicated or than the contractor could’ve expected.
Appeals of Amatea/Grimberg JV, ASBCA 60426 et al.
- Differing Site Condition – The contractor built a laboratory for the Navy. The contractor submitted a claim, alleging a differing site condition. The contractor said soil differed from the government’s description. The board agreed the site was a muddy mess. But the mud wasn’t a differing condition. The government had provided the contractor with boring logs for the soil. The contractor hadn’t claimed the soil encountered differed from the logs. Moreover, the contractor obtained its own geotechnical report, which had warned of mud issues.
- Weekend Work – The contractor contended the Navy breached the duty of good faith and fair dealing by not allowing work on weekends. The board rejected the argument. The contracting officer had discretion to allow work outside normal business hours. The board did ‘t think the CO had abused their discretion by prohibiting weekend work. Weekend work would’ve imposed significant costs on the government.
- Sprinkler System – The contractor asserted two claims related to a sprinkler system it installed. First, the contractor claimed it encountered a differing site condition due to water flow. The board agreed this was a different condition, entitling the contractor to extra costs. The contractor also claimed a constructive change related the sprinkler system. The board denied that claim.
- Constructive Acceleration – The contractor alleged it was required to perform additional work, which forced it to incur overtime. The contractor believed this resulted in a constructive acceleration. The board wasn’t persuaded. To establish acceleration the contractor must prove excusable delay. Here, the contractor had not presented any evidence of excusable delay.
The contractor is represented by Stephen H. Swart, Arnie B. Mason, and Melisa A. Roy of Williams Mullen. The government is represented by Craig D. Jensen and Joshua S. Kauke of the Navy.
–Case summary by Craig LaChance, Senior Editor
