While performing, the contractor hit a gas line causing an explosion. The contractor alleged the depth of the gas line was a differing site condition. The ASBCA ruled there couldn’t be a differing site condition because the contract had not made an affirmative indication of the gas line’s depth.
Appeal of RLB Contracting, Inc., ASBCA No. 62779
- Defective Specifications – While performing, the contractor hit a submerged natural gas line, which caused an explosion and delayed work. The contractor alleged the government was liable for the delay due to defective specifications. The board disagreed. The contract drawings accurately disclosed the location of the gas line. Moreover, even if the specifications had been defective, the government still wouldn’t be liable. The contract placed the risk of submerged utility lines on the contractor.
- Differing Site Conditions – The contractor alleged the depth of the gas line was a differing site condition. Not so, said the board. A contractor can only recover under a differing site condition theory when the contract makes an affirmative indication of the conditions at the site. Here, the contract did not make any indication about the depth the gas line.
- Good Faith Fair Dealing – The contractor contended the government breached the duty of good faith and fair dealing by not disclosing the depth of the gas line. The board reasoned the contractor could not use the duty of good faith and fair dealing to impose a duty to disclose the gas line’s depth when the express terms of the contract imposed a duty on the contractor to determine the depth.
RLB is represented by Michael H. Payne and Casey J. McKinnon of Cohen Seglias Pallas Greenhall & Furman, P.C. The government is represented by Michael P. Goodman and Clark Bartee of the Army Corps of Engineers.
–Case summary by Craig LaChance, Senior Editor
