Differing Site Conditions: When the Part Does Not Equal the Whole

If all apples are fruit, then why are all fruit not apples? Because the part does not represent the whole. A Government Contractor discovered this when it learned that all unsuitable material was unsatisfactory material; but, all unsatisfactory material was not unsuitable material. Let me explain . . .

Under a Contract with the U.S. Army Corps of Engineers for two explosives storage magazines and a storm drain at Picatinny Arsenal, New Jersey, “unsatisfactory materials” were to be replaced with satisfactory materials. Basically, “unsatisfactory materials” included anything that could not be used as backfill.

As is typical, the Corps answered several pre-bid questions that later became amendments to the Contract. One of the Corps’ answers stated, “assume unsuitable material is not encountered.” The Contractor improperly equated “unsuitable material” with “unsatisfactory material.”

Although the term “unsuitable material” was not separately defined in the Contract, the Court found that other Contract provisions (e.g., pre-bid Q&A’s, specs, and soil borings) helped to define it as “unsatisfactory material” but only at certain depths/locations. Thus, the pre-bid Q&A did not pertain to “unsatisfactory materials” generally; but, only a subset of unsatisfactory materials – “unsuitable materials.”

While the whole included the part (unsatisfactory material included all unsuitable material), the part did not equal the whole (unsuitable material did not include all unsatisfactory material).

Senate Builders and Construction Managers, Inc. v. U.S., Ct. of Fed. Claims, Case No. 14-1196C (April 29, 2017).

Published On: March 8, 2018