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Contract appeals board recognizes that discovery may uncover new claims

April 1, 2019 By Nancy Cleveland

In Amec Foster Wheeler Environment & Infrastructure, Inc. v. Department of the Interior, CBCA 5168 et al. (Feb. 27, 2019), the Civilian Board of Contract Appeals (CBCA or Board) recently reiterated that a contractor need not assert every conceivable legal theory of relief as soon as it encounters an unforeseen condition on a construction project.

Rather, a contractor may later be able timely to assert additional claims under distinct theories based on operative facts learned during discovery. Apropos of recently celebrated St. Patrick’s Day, this case indicates that discovery may be the rainbow that leads a contractor to a bigger pot of gold, i.e., operative facts that permit assertion of more valuable claims based on alternative legal theories.

The Case

In 2011, the National Park Service awarded Amec a contract to repair parts of the Alcatraz Cellhouse in the historic prison on Alcatraz Island. In January 2016, Amec appealed a contracting officer’s decision denying an equitable adjustment and schedule extension under theories of constructive change and breach of the duty of good faith and fair dealing. The Board docketed that appeal as CBCA 5168.

During discovery, Amec decided to allege alternative grounds for relief. Indeed, in August 2018, Amec submitted a new claim for more money than it sought in the already docketed appeal — based on different operative facts and under the distinct theories of superior knowledge and negligent estimates. Amec appealed the denial of that second claim to the Board, which was docketed as CBCA 6298 and consolidated with CBCA 5168.

Keep reading this article at: https://www.insidegovernmentcontracts.com/2019/03/cbca-recognizes-that-discovery-may-uncover-new-claims/

Filed Under: Contracting News Tagged With: CBCA, construction, National Park Service, unforeseen condition

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

August 25, 2017 By Nancy Cleveland

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/

Filed Under: Contracting Tips Tagged With: contract clauses, contract formation, differing site conditions, equitable adjustment, FAR, latent physical condition, postaward, site conditions, unforeseen condition

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