Contractor's Claim Denied: The Importance of Knowing Prior Projects in Differing Site Condition Disputes

In Skanska Civil USA Southeast, Inc. ASBCA Nos. 61220, 61347 (April 3, 2025), the Armed Services Board of Contract Appeals denied the contractor's claim for differing site conditions. The contractor asserted claims for defective specifications and a differing site condition arising out of the demolition of two existing piers. A plan note indicated that the contractor should assume that the pier piles would be coated with creosote. In fact, the interior pier piles were not coated with creosote. The contractor alleged that had the piles been coated as indicated, the pile deterioration would not be as significant as encountered and the extraction of the piles would not have been as difficult, i.e., the number of piles that would have broken during the extraction process would have been considerably less.

The Board first noted that when a contractor alleged both a differing site condition and a change and the alleged change is a failure to disclose the differing site condition, the change will be evaluated under the legal standards applicable to a differing site condition.

Turning to the contractor's Type 1 differing site condition claim, the Board agreed with the contractor that the statement in the plans to "assume" the piles would be coated with creosote constituted a representation of a condition.

However, the Board also found that the condition that was encountered should have been anticipated based on (a) the contractor's prior work at the project site ten years before the project at issue, (b) the labeling convention on the as-builts available to the contractor indicated the piles were not coated with creosote, and (c) the age of the piles suggested the creosote would not have prevented the deterioration that was encountered. Consequently, the contractor's Type 1 differing site condition claim was denied.

Takeaways From the Skanska Decision

At least for findings (a) and (b), this seems to be a hard decision for the contractor. The contractor is not entitled to rely on express representations in the plans where it had prior history on the project, albeit 10 years prior, and where there are referenced as-builts that are inconsistent with the project plans. The teaching point is to ensure that you retain your institutional knowledge of prior projects to reference in your bid preparation and ensure you thoroughly review reference information to ensure it is not inconsistent with the information contained in the bid plans and specifications.