Georgia Tech Procurement Assistance Center

When is an unforeseen condition a ‘differing site condition’?

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I was reviewing various articles I have written over the years and came across a prior version of this one about differing site conditions, written nearly twenty years ago.   I was curious – does this cup still hold water?

It does.

Many construction contracts contain some version of a “differing site conditions” clause.   It is found in the current version of AIA’s A201 general conditions, as well as in the EJCDC equivalent.   It also appears in most state DOT specifications, as well as in federal government construction contracts.   Generally, it provides for a change order (subject to procedural compliance) when the contractor encounters (i) subsurface or other concealed conditions that differ materially from the conditions indicated by the contract documents or (ii) unknown physical conditions of an unusual nature differing materially from those ordinarily encountered and recognized as inherent to the work provided for in the contract documents.   But, as they say, “timing is everything.”   This adage applies, too, to a differing site conditions claim.

In Olym­pus Corp. v. United States, 98 F.3d 1314 (Fed. Cir. 1996), the United States Federal Circuit Court of Appeals was confronted with the following ques­tion: Are delays caused by a govern­ment caused hazardous materi­als spill compensable under the federal Differing Site Condi­tions clause?  The court an­­­­­s­wered “no” based on its con­clusion that to be con­sidered a differing site con­dition, the condition must exist at the time the contract was formed.

Olympus entered into a fixed price contract with the United States to pave the plant yards at the Stratford Army Engine Plant located in Strat­ford, Connecticut. As man­­­­­­­­­­­­­dated by the Federal Acquisition Regulation, 48 C.F.R. ‘ 52.236-3 (1995), the contract contained a standard Differing Site Conditions clause which provided, in part, for an equitable adjustment, upon notice, of  “subsurface or latent physical conditions at the site which differ materially from those indicated in [the] contract.”

Keep reading this article at: http://www.jdsupra.com/legalnews/when-is-an-unforeseen-condition-a-73987/

The ‘nudum pactum’ mistake

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One of the three basic requirements for a contract to be enforceable is consideration, which usually means a promise to pay money, but could mean that another valuable item would be provided instead (as in a trade, for example, of one valuable car for another valuable car).

Nudum PactumIn federal procurement contracts, the courts have said that to be a valid contract, the transaction “must show a mutual intent to contract including an offer, an acceptance and consideration.” If there’s no consideration, is it a contract?  The answer is simple: it’s a “nudum pactum” and there is no valid contract.

A nudum pactum is defined as a “bare agreement,” a promise or undertaking without any consideration for it. Where there is a nudum pactum, the contract is neither valid nor enforceable.

Keep reading this article at: http://federalnewsradio.com/commentary/2015/11/nudum-pactum-mistake/

Government contracting courses for 2014 announced

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The Contracting Education Academy at Georgia Tech (The Academy) has released its course calendar for calendar year 2014.

Representatives of both the government and private sectors will be pleased to learn that the courses include both traditional favorites as well as new offerings for 2014.

The Academy is an official training equivalency provider of the Defense Acquisition University (DAU).  Since each of The Academy’s courses is DAU-equivalent, they satisfy the federal government’s FAC-C and DAWIA certification programs.  In addition, continuing education units (CEUs) are granted by the Georgia Institute of Technology.

  • The Federal Acquisition Certification in Contracting Program (FAC-C) establishes graduated education, experience, and training standards for contracting professionals in all civilian agencies. FAC-C certifications are mutually accepted among all civilian agencies as documentation of accomplishment of these standards.
  • The Defense Acquisition Workforce Improvement Act (DAWIA) established a very similar, but not identical, program for the Department of Defense (DoD). Civilian agencies may accept DAWIA certification as equivalent to FAC-C certification.

Of particular interest to representatives of the business community is the fact that The Academy’s coursework has been tailored to be relevant to both government contractors and government contracting professionals.  This makes The Academy’s classroom one of the few places anywhere where representatives of the private and government sectors can learn side-by-side about federal acquisition.   As a result, students find Academy courses especially rich in content and lively in conduct.

Courses currently scheduled for 2014 include:

To see each course’s scheduled dates, please click on the links above or visit: http://contractingacademy.gatech.edu/training.

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