Lee-Ann C. Brown and John Mark Goodman | BuildSmart
The U.S. Court of Appeals for the Federal Circuit recently affirmed a decision of the Armed Services Board of Contract Appeals (ASBCA) denying a contractor’s differing site condition claim on a flood control project along the Trapp Canal in Jefferson Parish, Louisiana. Hamp’s Construction LLC v. Secretary of the Army, No. 2024-1528 (Fed. Cir. June 30, 2026).
The decision is a reminder that a Type I differing site condition claim requires a contractor to show that the actual conditions materially differed from what the contract documents expressly indicated for the specific location at issue.
Background
The solicitation for the project included canal cross-sections and 10 boring logs taken in 2008, most of them from the east side of the canal. Work proceeded smoothly on the northern portion of the project. But when Hamp’s Construction reached the southwest bank in 2013, it encountered a collapsed section of bank and several other areas of slope failure. Concluding that it could not safely operate loaded trucks there, the contractor switched to barge-based equipment, resulting in significant delays and additional costs.
Hamp’s Construction sought an equitable adjustment and later submitted a certified claim, asserting a Type I differing site condition. The ASBCA denied the claim, finding that although the contractor was surprised by the conditions, it had not shown that those conditions contradicted any representation in the contract.
Differing Site Conditions Claims
Contractors that encounter unexpected conditions may assert what is commonly known as a differing site condition (DSC) claim. These claims generally seek additional time, compensation, or both to address unforeseen conditions. As with any contract claim, entitlement depends on the facts of the case, the language of the contract, and the applicable law.
Federal government construction contracts typically incorporate the standard differing site conditions clause found in Federal Acquisition Regulation (FAR) 52.236-2. That clause recognizes two types of differing site conditions:
Type I: Subsurface or latent physical conditions at the site differing materially from those indicated in the contract; or
Type II: Unknown physical conditions at the site that are unusual in nature and differ materially from those ordinarily encountered and generally recognized as inhering in the type of work contemplated by the contract.
The FAR requires the contractor to promptly notify the contracting officer before disturbing the conditions. The contracting officer then investigates the conditions and determines whether an equitable adjustment is warranted. If the contractor disagrees with the contracting officer’s decision, it may appeal to the appropriate board of contract appeals and, ultimately, to federal court.
Hamp’s Construction’s DSC Claims:
For reasons that are not entirely clear, Hamp’s Construction pursued only a Type I DSC claim. The threshold issue for such a claim is whether the contract indicated the conditions that would be encountered at the specific location and whether the actual conditions materially differed from those indications.
Hamp’s Construction argued that three sources satisfied that requirement: (1) the boring logs, (2) the contract drawings, and (3) the original solicitation language. The Federal Circuit rejected each argument.
Boring logs. The court agreed with the Board that substantial evidence showed conditions on the southwest bank were significantly worse than elsewhere along the canal. The record included expert testimony, steeper cross-sections on the west bank, and pre-bid photographs taken by Hamp’s Construction’s subcontractor suggesting a history of slope failures. Given those differences, boring logs from other portions of the project did not constitute indications of the conditions that would be encountered on the southwest bank.
Contract drawings. Hamp’s Construction also argued that the contract drawings depicted construction traffic on the southwest bank. The Federal Circuit held that the argument was forfeited because it had not been meaningfully raised before the Board. Moreover, the argument lacked support because the drawings themselves were not included in the appellate record.
Pre-amendment solicitation. Hamp’s Construction further argued that the original solicitation prohibited the use of marine equipment, thereby indicating that the banks were suitable for land-based operations. That provision, however, had been rescinded by amendment before bids were submitted and therefore did not govern the work. In addition, Hamp’s Construction had disclaimed reliance on the original solicitation before the Board, preventing it from relying on that language on appeal.
The Board found and the Federal Circuit agreed that Hamp’s Construction had a “strong case that it was surprised” by the conditions on the southwest bank. Neither tribunal disputed that the contractor encountered genuine problems. Nevertheless, the claim failed because Hamp’s Construction could not show that the government had made any representation about conditions at that specific location that proved inaccurate. Because the contract document was silent regarding the southwest bank, Hamp’s Construction’s Type 1 DSC claim failed.
Takeaways
Contractors pursuing a Type I differing site condition claim should focus on establishing that the contract affirmatively indicated conditions at the specific location where the differing condition encountered. General information drawn from other portions of a project — even nearby ones — may not suffice where the evidence shows materially different subsurface or site conditions across the project. A full copy of the court’s decision is available here.
If you are considering or defending a differing site conditions claim, please give any of Bradley’s construction lawyers a call. Our #1 ranked construction practice group regularly handles these types of claims and would be happy to review your case.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 801.641.8304, or email experts@adviseandconsult.net.
Republished with permission. The article, “Contract’s Silence on the Southwest Bank Sinks Differing Site Condition Claim” was originally published on BuildSmart by Bradley Arant Boult Cummings LLP. Copyright 2026.