Disagreeable Weather Is Not a Differing Site Condition

The contractor claimed it encountered a differing site condition due to high water levels. The ASBCA noted the water levels were caused by weather, and weather, no matter how severe, is never a differing site condition.

Appeal of L.S. Black-Loeffel Civil Construction JV, ASBCA No. 62402

• Defective Specifications – The contract was for installation of a concrete structure to protect a lock channel from barges on the Mississippi River. The contractor alleged the specifications were defective because they didn’t specify that a thermal break to control the temperature of concrete would be needed if work was performed in the winter. But a defective specification claim only applies to design specifications—specifications that required a specific type of performance. The specifications in this case were performance specification that merely left performance to discretion of the contractor.
• Delays – The contractor said the government caused delay by taking too long to approve the contractor’s plan for a thermal break. The board found the government acted with reasonable haste. To the extent there was delay, it was caused by the contractor’s unacceptable plans.
• Differing Site Condition – The contractor alleged the water levels it encountered were a Type 1 differing site condition. The board said there wasn’t a differing condition because the contract said nothing about the water levels. What’s more, the higher-than-expected water levels were caused by weather. Weather, no matter how severe, is not a differing site condition.
• Superior Knowledge – The contractor contended the government failed to disclose superior knowledge about the design for the project. The contractor believed the government knew from other projects that winter work would require a thermal break. But the duty to disclose superior knowledge does not cover methods used by other contractors.

The contractor is represented by Reginald M. Jones, Tara Hosseini, Diana McGraw, and Nicholas T. Solosky of Fox Rothschild LLP. The government is represented by Michael P. Goodman, Molly M. Hunt, and Simon R. Rutherford of the Army Corps of Engineers.

–Case summary by Craig LaChance, Senior Editor