A recently reported decision by the Armed Services Board of Contract Appeals underscores the necessity for bidders to review pre-bid data listed in the solicitation. In Mass Construction Group, Inc., ASBCA No. 55440, the contractor pursued a claim for a differing site condition, alleging that it had encountered a Type II condition, namely “unanticipated” groundwater flooding into its footing excavations.
The ASBCA, in denying the contractor’s appeal, made the following findings of fact:
1) The solicitation advised bidders that subsurface data was available for review at a specified location. (the government’s contracting office).
2) The subsurface data disclosed a groundwater table that existed between three and one half and six feet of the surface elevation.
3) The contractor did not review any of the subsurface data before submitting its bid and did not attend the pre-bid site visit.
4) The site conditions encountered by the contractor were quite similar to those disclosed in the subsurface drilling logs that the contractor neglected to review.
The ASBCA, therefore, found that the contractor had not established that it had encountered unanticipated site conditions. Significantly, the Board stated that the failure to review the subsurface data at the scheduled pre-bid site visit,” put Mass at risk of any unexpected subsurface conditions which it encountered.”
The message in this decision is unmistakable: If the government’s solicitation advises potential bidders of subsurface data that is available for inspection, bidders must review this data or be willing to risk the potentially serious consequences of failing to do so.