A recent decision from an appeals court in Washington State is a reminder of the difficulties in proving a differing site conditions claim, and the importance of contract documents in asserting that claim.

In King County v. Vinci Construction Grands Projets, — P.3d —, No. 70432-01, 2015 WL 6865706 (Wash. App. Nov. 9, 2015), the Court of Appeals of Washington affirmed the trial court’s conclusion that the contractor had not proven its differing site conditions claim. Vinci Construction Grands Projets (“VPFK”) was hired by King County to construct portions of the tunneling work for a major expansion of the County’s wastewater treatment system. While tunneling, VPFK encountered a number of problems that resulted in significant delays in completion of the project,  asserting that it encountered soil conditions materially different from what was anticipated. Specifically, VPFK claimed that the frequency of transitions between one soil condition and another was higher than expected and caused substantial slowing of the progress of tunneling because equipment operators had to adjust equipment more often to account for the changes.

The county rejected it’s request for a change order related to the differing site conditions and the trial court granted summary judgment in favor of the county on that issue, dismissing VPFK’s claim for differing site conditions based on the transitions between plastic and non-plastic soils.

VPFK then appealed the dismissal of its differing site conditions counterclaim, asserting that it encountered more frequent changes between plastic and non-plastic soils than the contract documents indicated. The appeals court disagreed, referencing two earlier decisions in its jurisdiction, noting the following requirements for establishing a differing site condition claim:

  • The contract documents indicated certain conditions
  • The contractor reasonably relied on those indications when making its bid
  • Actual conditions materially differed from those which were indicated in the contract
  • The materially different conditions were not foreseeable

The court concluded that VPFK had failed to establish its claim with respect to the first two elements. First, that the contract documents made no representation, whether implicit or explicit, regarding the frequency or number of transitions; the documents indicated only that that soil conditions were variable. Further, the documents explicitly stated that bidders should make their own interpretations and draw their own conclusions about soil conditions along the tunnel. Second, that VPFK had failed to establish that it reasonably relied on the contract indications when preparing its bit. The experts that VPFK claimed it had retained to analyze the site conditions had not made any explicit predictions regarding transitions.

This case is yet another reminder of the importance of contract documents in asserting or defending a differing site conditions claim and the difficulties in succeeding in prosecuting a claim. The risk of unforeseen conditions can often fall on the general contractor, with disastrous results.