The government’s motion to dismiss an appeal of the agency’s denial of a claim is denied, where the solicitation was ambiguous on whether the site had been tested for the presence of groundwater, and where language in the solicitation disclaiming responsibility for the accuracy of its specifications was not persuasive.
R.L. Persons Construction Inc. appealed the final decision of the Army Corps of Engineers contracting officer denying its request for an equitable adjustment related to groundwater it encountered while obtaining borrow material for a construction project.
Persons asserted the solicitation indicated that the agency would provide a borrow pit from which it could obtain the materials for the project. Persons also asserted theories of differing site conditions, changes, and defective specifications, arguing that it encountered groundwater after excavating materials from the borrow pit.
The government moved for summary judgment, arguing that the contract was silent as to the presence or absence of groundwater, and therefore it cannot reasonably be interpreted as affirmatively representing an absence of groundwater. The government also argued that other contractual information created an expectation of groundwater in the borrow pit.
However, the board found there was a genuine issue of material fact as to whether there was Type 1 differing site condition. Contrary to the agency’s assertion, the solicitation was not silent regarding the presence or absence of groundwater in the borrow pit. Instead, the solicitation stated that there was no available groundwater data from the boring. The court found this phrase ambiguous, because the solicitation contained no explanation of why there was no data. According to the board, the contractor could have reasonably interpreted there was no data because the borings had been sampled for groundwater and did not find any.
The Corps also argued that Persons could not rely upon the boring profiles as a representation of ground water levels it would encounter, because of solicitation language stating that the absence of water surface data on a boring profile “does not necessarily mean that ground water will not be encountered at the locations or within the vertical reaches of such borings.” However, the board noted that such governmental disclaimers of responsibility for the accuracy of specifications which it authors are viewed with disdain.
The Corps also complained that, if it had disclosed groundwater levels on the boring profiles, then it would have subjected itself to a differing site condition claim if the actual groundwater level turned out to be different. However, the board explained that the Corps could have avoided exposure to such a claim, while still providing accurate information to contractors, by clearly stating that it did not sample for groundwater in the borrow pit area, or omitting the misleading suggestion that it was reporting whether it encountered groundwater.
R.L. Persons is represented by Matthew W. Willis and S. Leo Arnold of Ashley & Arnold. The government is represented by Thomas J. Warren, Ann M. Bruck, and Edward J. McNaughton of the U.S. Army.
