A longitudinal study of a Type I differing conditions claim: investigating the contractor's failure to meet the reasonable prudent standard

Donald Jensen

Construction Management and Economics, 2010, vol. 28, issue 1, 63-74

Abstract: The United States government's differing conditions clause poses extensive legal and financial risk. This contract clause addresses Type I and Type II unforeseen conditions. A Type I condition occurs when a latent physical condition materially differs from that condition indicated in the bidding documents. A Type II condition exists when an unknown physical condition has an unusual nature different from that condition generally encountered and naturally inhering in the contract work. The occurrence of either provides a contractor with the contractual right to file a claim for equitable contract adjustment. A contractor desiring to prevail, regarding a Type I claim, must properly comply with the Weeks Dredging proof elements. Chi-square statistical results, for 143 Type I differing conditions claims, provide empirical evidence that 79% of the contractors receive a disfavourable court award when challenging the United States government. Forty-four per cent of the reported cases cite the Weeks Dredging proof element, contractor did not act as a reasonably prudent contractor, as a basis for denying a contractor's claim for equitable adjustment. This standard measures whether a reasonable contractor did or did not review and properly document all bidding documents.

Keywords: Bidding; contract claims; government contracts; site conditions; Type I claim (search for similar items in EconPapers)
Date: 2010
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DOI: 10.1080/01446190903406162

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