Since the material that was encountered — “mostly fat clay” — did not materially differ from the possible range indicated in the boring logs (“fat to lean clay” and “lean to fat clay,”), the Board concluded that NDG failed to prove a Type I condition in this respect.

Third, NDG contended the moisture content of the soils was much higher than indicated or anticipated, and thus, was a differing site condition. NDG stated that it encountered soils described as “very wet” or “extremely wet,” while the soils reports described the soils as “moist to very moist,” and as “soft wet soils, along with groundwater . . . that should be anticipated.”

The Board did not see a difference between the wet conditions claimed by NDG and the soils described in the reports. In addition, the Board found NDG’s expert’s sampling of soils unconventional and contaminated by Bentonite slurry. Because the soil moisture encountered by NDG was what the soils reports indicated “should be anticipated,” and the soil samples relied upon by NDG were not reliable, the Board found that NDG failed to prove a Type I differing site condition in this instance.

This case illustrates the difficulties that can be encountered in trying to prove a Type I differing site condition claim. In order to prevail on such a claim, the contractor needs to scrutinize the contract documents and show how and why the actual conditions encountered were different from those indicated. This includes an analysis of contract language and technical documents incorporated into the contract such as soils reports.

Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com