Livingston Procurement Law
MSBCA Cases
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The cases provided below are cases in which Scott A. Livingston appeared before the Maryland State Board of Contract Appeals, usually representing the appellant or an interested party. We present these cases to show the various contract issues that Mr. Livingston has been involved in before the Board.
 
TITLE: SPECTRUM HEALTH SERVICES, INC.
MSBCA #: 2686
YEAR: 2010
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Board of Contract Appeals - Jurisdiction
HEADNOTE: Board of Contract Appeals - Jurisdiction The Board is without jurisdiction to hear this bid protest. Pursuant to the Code of Maryland Regulations (COMAR) § 21.11.03.14(B), this Board lacks jurisdiction to entertain any bid protest "concerning an act or omission by a procurement agency under this chapter [COMAR 21.11.03]."

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TITLE: CONCRETE GENERAL, INC.
MSBCA #: 2587
YEAR: 2008
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Jurisdiction, Rejection of All Bids
HEADNOTE: Jurisdiction - MSBCA may not review issues never raised before the
State's procurement officer because there is no agency decision from which to take an appeal.

Jurisdiction - MSBCA has no jurisdiction over MBE issues.

Rejection of All Bids - Agency has broad discretion to reject all bids when it is in the State's best interest to do so.

Rejection of All Bids - Procurement ambiguity is sufficient to permit the State to reject all bids.

Rejection of All Bids - Agency's determination to reject all bids will not be reversed in the absence of proof that the determination was arbitrary, capricious, made in bad faith or fraudulent.

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TITLE: CORRRECTIONAL SERVICES CORP. & YOUTH SERVICES INTERNATIONAL OF MD, INC.
MSBCA #: 2509
YEAR: 2006
CASE TYPE: Contract Claim
ISSUE: Board of Contract Appeals - Jurisdiction - Absence of Final Decision
HEADNOTE: Board of Contract Appeals - Jurisdiction - Absence of Final Decision The Board of Contract Appeals lacks jurisdiction to hear an appeal on a contract claim where no final agency decision has been issued. The right to appeal on a deemed denied basis is limited by law to construction contracts.

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TITLE: CSCI, LLC
MSBCA #: 2526
YEAR: 2006
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Bid Protest - Form
HEADNOTE: Bid Protest - Form Under COMAR 21.03.05.02A, if a solicitation does not specify that electronic transactions are permitted or required, bidders or offerors may not use electronic means for any part of the procurement, including the filing of a bid protest. Therefore, a bid protest sent by facsimile may not be considered unless the solicitation authorizes protests to be sent by facsimile.

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TITLE: YELLOW TRANSPORTATION
MSBCA #: 2374, 2380, 2381, 2382 & 2389
YEAR: 2006
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Bid Protest Costs
HEADNOTE: Bid Protest Costs Certain costs are awardable in successful bid protest cases (COMAR 21.10.07.09A) when the Board sustains an appeal based on a violation of law or regulation by the unit conducting the procurement.

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TITLE: DAVID A. BRAMBLE, INC.
MSBCA #: 2550
YEAR: 2006
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Bid Responsiveness - Minor Irregularities
HEADNOTE: Bid Responsiveness - Minor Irregularities When bid requirements prescribe that the invitation for bid (IFB) must be attached with a responsive bid, the failure of a low bidder to do so renders such a bid irregular but not unresponsive. Particularly where it appears that the low bidder acknowledges full understanding of contract obligations and binds itself to an enforceable offer, the bid is responsive because the bid defect constitutes only a minor irregularity.

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TITLE: C. J. MILLER, LLC
MSBCA #: 2556
YEAR: 2006
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Minority Business Enterprise - Jurisdiction
HEADNOTE: Minority Business Enterprise - Jurisdiction Pursuant to COMAR 21.11.03.14, acts or omissions by a procurement agency regarding Minority Business Enterprise (MBE) issues may not be appealed, and the MSBCA is, therefore, without jurisdiction to hear such appeals.

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TITLE: L.S. LEE, LLC
MSBCA #: 2463 & 2468
YEAR: 2005
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Signing of Bids
HEADNOTE: Signing of Bids The failure to sign a bid may be waived as a minor informality pursuant to COMAR 21.06.02.04 if the bid is accompanied by other material clearly indicating the bidder's intent to be bound. The materials submitted with the bid in this case did not permit the State to waive the failure to sign the bid.

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TITLE: GRAY & SON, INC.
MSBCA #: 2409
YEAR: 2005
CASE TYPE: Contract Claim
ISSUE: Contract Interpretation
HEADNOTE: Contract Interpretation In interpreting bid documents all provisions will be read together and interpreted as a whole.

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TITLE: AMERICAN PAVING CORPORATION
MSBCA #: 2498
YEAR: 2005
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Bid Bond Defect
HEADNOTE: Bid Bond Defect Where a bid bond containing a defect accompanies a bid, the bid may nevertheless be accepted if the Procurement Officer reasonably determines that the bid bond is enforceable by the State against the surety.

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TITLE: YELLOW TRANSPORTATION
MSBCA #: 2374, 2380, 2381, 2382 & 2389
YEAR: 2004
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Bias
HEADNOTE: Bias Repeated contacts between an offeror's representative and members of an evaluation committee (e-mail communications memorialized in writing) provided substantive hard facts and evidence of bias in favor of that offeror by the evaluation committee members involved in the communications. This bias tainted the evaluation process, resulting in an award that was unreasonable and violative of Maryland procurement laws and regulations.

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TITLE: KENNEDY PERSONNEL SERVICES
MSBCA #: 2425
YEAR: 2004
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Rejection of Bids
HEADNOTE: Rejection of Bids Rejection of all bids and resolicitation is permissible where the procurement agency reasonably determines that it was fiscally advantageous or otherwise in the best interest of the State to do so.

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TITLE: JAMES F. KNOTT CONSTRUCTION CO., INC.
MSBCA #: 2437
YEAR: 2004
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Minority Business Enterprise - Bid Protest - Jurisdiction
HEADNOTE: Minority Business Enterprise - Bid Protest - Jurisdiction The Board of Contract Appeals does not have jurisdiction to decide a dispute that requires the Board to determine the appropriateness of alleged acts or omissions by a procurement agency under COMAR 21.11.03 Minority Business Enterprise Policies.

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TITLE: TRIGEN-CINERGY SOLUTIONS OF COLLEGE PARK LLC
MSBCA #: 2315 & 2316
YEAR: 2003
CASE TYPE: Petition for Declaratory Ruling
ISSUE: Board of Contract Appeals - Jurisdiction
HEADNOTE: Board of Contract Appeals - Jurisdiction As one of a series of related agreements to secure long-term energy services for the University with financing provided by the Maryland Economic Development Corporation (MEDCO), MEDCO entered into a design and construction agreement (DCA) with Trigen-Cinergy Solutions of College Park LLC (Trigen-Cinergy) to provide construction services on behalf of the University. The Board, however, lacked jurisdiction over disputes arising out of the DCA because, when MEDCO is engaged in the financing of transactions through the issuance of bonds, the provisions of the General Procurement Law do not apply as the result of an exemption for MEDCO fiom the provisions of the General Procurement Law under Section 5-214(a) of Article 83A (MEDCO's enabling legislation). This exemption from the General Procurement Law exists even though the University is the intended beneficiary of the DCA between MEDCO and Trigen-Cinergy.

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TITLE: DAISY CONCRETE, INC. OF MARYLAND
MSBCA #: 2338
YEAR: 2003
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Signing of Bonds
HEADNOTE: Signing of Bonds The failure to sign a bid may be waived as a minor informality pursuant to COMAR 21.06.02.04 if the bid is accompanied by other material clearly indicating the bidder's intent to be bound.

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TITLE: HOUSING AND DEVELOPMENT SOFTWARE, LLC
MSBCA #: 2289
YEAR: 2002
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Rejecting of Proposals
HEADNOTE: Rejecting of Proposals Rejection of all proposals and resolicitation by the procuring agency is permissible where such action results from a reasonable decision by a control agency that the contract recommended for approval by the procuring agency should not be placed on the agenda of the Board of Public Works for approval.

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TITLE: PILE FOUNDATION CONSTRUCTION CO., INC.
MSBCA #: 2224
YEAR: 2001
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Bid Protest - Timeliness
HEADNOTE: Bid Protest - Timeliness A protest filed more than seven (7) days after a protestor knew or should have known of the grounds for protest is late and the Board is without jurisdiction to hear the appeal from the denial of the protest.

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TITLE: PILE FOUNDATION CONSTRUCTION CO., INC.
MSBCA #: 2238
YEAR: 2001
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Responsibility - Discretionary Determination
HEADNOTE: Responsibility - Discretionary Determination - The rejection of an unbalanced bid is tied to the agency's discretionary determination of responsibility.

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TITLE: HERZOG CONTRACTING CORP.
MSBCA #: 2245
YEAR: 2001
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Responsiveness
HEADNOTE: Responsiveness Where a bidder submitted one bid for the work required by the IFB and included additional costs for contingent items, the bid was deemed to be qualified and therefore non-responsive.

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TITLE: HOUSING AND DEVELOPMENT SOFTWARE, LLC
MSBCA #: 2247
YEAR: 2001
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Negotiated Contract (Competitive) - Basis for Award
HEADNOTE: Negotiated Contract (Competitive) - Basis for Award The General Procurement Law and COMAR require that in negotiated procurements selection be based on a determination of the proposal or best and final offer which is the most advantageous to the State, considering price and other evaluation factors set forth in the request for proposals.

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TITLE: BEKA INDUSTRIES, INC.
MSBCA #: 2132
YEAR: 2000
CASE TYPE: Appeal of Denial of Claim
ISSUE: Specifications - Implied Warranty
HEADNOTE: Specifications - Implied Warranty By issuing the plans and specifications, the State impliedly warrants that the plans and specifications are adequate and sufficient.

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TITLE: ELECTRONIC COMMERCE AND CATALOG SERVICES, INC.
MSBCA #: 2100
YEAR: 1999
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Cancellation of Solicitation
HEADNOTE: Cancellation of Solicitation A solicitation may be canceled and all proposals (in this case the one remaining proposal) rejected if it is fiscally advantageous or otherwise in the States best interest.

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TITLE: P. FLANIGAN & SONS, INC.
MSBCA #: 2121
YEAR: 1999
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Minor Informality - How Determined
HEADNOTE: Minor Informality - How Determined In order to determine whether a defect in a bid or proposal is waivable as a minor informality, the procurement officer must first determine that the defect is immaterial as defined in COMAR 21.06.02.04B, i.e. the significance of the defect as to price, quantity, quality, or delivery is trivial or negligible when contrasted with the total cost or scope of the procurement.

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TITLE: DAVID A. BRAMBLE, INC.
MSBCA #: 1853
YEAR: 1996
CASE TYPE: Contract Interpretation
ISSUE: Contract Interpretation - Patent ambiguity
HEADNOTE: Contract Interpretation - Patent ambiguity Appellant's interpretation of bid documents was found to be unreasonable when it posited that bid item containing estimated quantity of 50 tons of bituminous concrete was the appropriate item under which approximately 3,000 tons of bituminous concrete for temporary and detour roads should be paid. In order for Government's interpretation not to prevail, where patent ambiguity results from interpretation posited by bidder, bidder has an obligation to bring the ambiguity to the attention of the procurement officer for clarification pre-bid.

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TITLE: KELLER BROTHERS, INC./ACCUBID EXCAVATION, INC., JOINT VENTURE
MSBCA #: 1946
YEAR: 1996
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Contract Interpretation - Patent ambiguity
HEADNOTE: Responsiveness - Bid Bond Defect Where a bid bond submitted by the low bidder did not provide for automatic extension of the surety's obligation for up to 90 additional days without consent of the surety, the bid was properly determined to be nonresponsive pursuant to COMAR 21.06.07.02B.

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TITLE: EYRE BUS SERVICE, INC.
MSBCA #: 1798
YEAR: 1994
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Specifications
HEADNOTE: Specifications - Strict Compliance - Two Step Procurement - A step one proposal submitted in response to the IFB requirements for a two step (multi-step) procurement need not comply with all specifications details as in a competitive sealed bid. However, the
basic or essential requirements of the specifications must be complied with and such requirements may not be ignored or downgraded to the status of mere expectations. In determining whether a step one response is acceptable, the Procurement Officer is vested with considerable discretion and his determination will not be overturned unless unreasonable.

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TITLE: NUTRITION MANAGEMENT SERVICES COMPANY
MSBCA #: 1810 & 1823
YEAR: 1994
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Negotiated Contract - Evaluation Criteria
HEADNOTE: Negotiated Contract - Evaluation Criteria - Price proposals in a procurement by competitive sealed proposals must be evaluated pursuant to the evaluation criteria set forth in the RFP.

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TITLE: GENSTAR STONE PAVING PRODUCTS COMPANY
MSBCA #: 1532
YEAR: 1993
CASE TYPE: Opinion on Remand
ISSUE: Equitable Adjustment-Variation in Estimated Quantities
HEADNOTE: Equitable Adjustment-Variation in Estimated Quantities - The "ordinary application" of the estimated quantity clause will determine entitlement to an equitable adjustment except where such application will result in an "excessive profit" (or loss) for the overrun item.

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TITLE: DALY COMPUTERS, INC.
MSBCA #: 1727
YEAR: 1993
CASE TYPE: Appeal of Denial of Bid Protest
ISSUE: Timeliness
HEADNOTE: Timeliness - COMAR 21.10.02.03B Provides:
In cases other than those covered in § A, protests shall be filed not later than 7 days after the basis for protest is known or should have been known, whichever is earlier. It is the factual determination on a case by case basis of what a reasonable bidder knew or should have known at a given time in the bidding process which commences the running of the seven day period. A reasonable diligent bidder must have facts available to it to actually or constructively know its basis for protest.

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TITLE: GENSTAR STONE PAVING PRODUCTS COMPANY
MSBCA #: 1532
YEAR: 1991
CASE TYPE: Appeal of Denial of Claim
ISSUE: Equitable Adjustment-Variation in Estimated Quantities
HEADNOTE: Equitable Adjustment-Variation in Estimated Quantities - The language of the variation in estimated quantities clause of a contract requires the party moving for an equitable adjustment to show that there has been an increase (or decrease) in costs for the
quantity above 125% of the estimated quantity through comparison of actual costs before and after the 125% threshold. Comparison of the bid price with costs above 125% of the estimate is not appropriate since there is no requirement in competitive bidding that the bid price for an estimated quantity item reflect the actual cost of such item. (See opinion on remand, MSBCA 1532.)

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TITLE: H. A. HARRIS COMPANY, INC.
MSBCA #: 1392
YEAR: 1988
CASE TYPE: Appeal of Denial of Claim
ISSUE: Responsiveness; Responsibility; Reconsideration, Command Influence
HEADNOTE: Responsiveness - A bid is responsive when it takes no exception on its face with regard to the bidder's intent to comply with RFQ specifications requiring a minimum of work to be performed by the bidder's own personnel since it is unequivocally and unambiguously committing the bidder to that requirement. Responsiveness is determined from the face of the bid document and not from information subsequently obtained through a verification process or other extrinsic evidence.

Responsibility - Statements made by the bidder subsequent to the opening of bids and before award of the contract with regard to its ability to comply with RFQ specifications requiring a minimum of work to be performed by the bidder's own personnel do not affect the bid' s responsiveness but can be used to determine the bidder's responsibility since such statements concern the bidder's capability to perform the contract.

Reconsideration - A procurement agency has the inherent right to reconsider a procurement officer's final decision up to the time when an appeal is taken to the Appeals Board or the running of the appeal period in order to correct an error of law or mistake of fact.

Reconsideration - Section 11-137 (c) 5 (d), State Finance and Procurement Article, provides that a procurement officer's decision on a bid protest is to be reviewed by the procurement agency head and the head of any principal department of which the procurement agency is a part and the reviewing authority's decision to approve, disapprove or modify the procurement officer's decision is the final action of the procurement agency. Section 11-137(f) provides that it is this final action of the procurement agency which may be appealed to the Appeals Board. Under the facts of this case, therefore, it was appropriate for the Secretary of Transportation to reconsider his own decision to approve the Maryland Port Administration procurement officer's final decision and the Secretary's determination to change his decision was a legitimate exercise of his power as the reviewing authority and will not be overturned by this Board since it was not shown to be collusive, arbitrary, or in violation of statute or regulation.

Command Influence - Appellant did not meet its burden of proof to support its claim of command influence; this is not a case where the procurement officer's final decision was usurped by a higher authority but a case where he was overruled.

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TITLE: DEWEY JORDAN, INC.
MSBCA #: 1304
YEAR: 1987
CASE TYPE: Appeal of Denial of Claim
ISSUE: Burden of Proof - Procurement Officer's Discretion
HEADNOTE: Burden of Proof - The State generally has the burden of proof in an appeal, both as to the issues of entitlement and quantum, when a credit is taken against Appellant's contract price pursuant to a contract provision allowing for a credit when the State accepts nonconfirming construction materials. However, the Appellant has the burden of proof where it disputes the method utilized by the procurement officer to calculate the credit and there is no dispute to the State's entitlement or the amount of the credit based on the State's method of calculation. This is a challenge of the procurement officer's exercise of discretion which will not be disturbed unless shown to be fraudulent or so arbitrary as to constitute a breach of trust.

Burden of Proof - Procurement Officer's Discretion - Where the contract grants authority to the procurement officer to "provide for an appropriate adjustment" and Appellant suggests that its averaging method of calculating the adjustment is more equitable to the Appellant than the straight line method used by the procurement officer, which is more favorable to the State, the Appellant's burden of proof to establish that the procurement officer's exercise of discretion was fraudulent or so arbitrary as to constitute a breach of trust has not been met.

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TITLE: THE DRIGGS CORPORATION
MSBCA #: 1243
YEAR: 1985
CASE TYPE: Bid Protest
ISSUE: Mistake in Bids
HEADNOTE: Mistake in Bids - Discovered Before Award - Where the invitation for bids provides that the unit price governs discrepancies between a unit price and its extension, such provision must be read in harmony with COMAR 21.05.02.12 (and its nearly identical counterpart in the IFB) permitting correction only if both the mistake and the intended bid price are clearly evident on the face of the bid document. The procurement officer properly denied correction despite the bidders confirmation that its stated unit price was intended where the bid documents reflected that either the unit price or the extended price could reasonably have been intended.

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TITLE: C. J. LANGENFELDER & SON, INC.
MSBCA #: 1000, 1003 & 1006 Consolidated
YEAR: 1980
CASE TYPE: Appeal of Denial of Claim
ISSUE: Multiple
HEADNOTE: Rescission -- Partial rescission for unilateral mistake was denied where the contract was entire.

Constructive Change -- Where a contract mandated the performance of work in a
specific sequence, a directive altering the sequence constituted a change to the contract.

Constructive Change - A directive to dispose of certain oversized materials encountered
in dredging at an alternate disposal site not specified in the contract was a constructive
change.

Equitable Adjustment - Equitable adjustments are corrective measures utilized to keep
a contractor whole when the State modifies a contract. The intent is to restore a
contractor to the economic position he was in prior to the modification.

Equitable Adjustment - The standard of measurement for an equitable adjustment is the
difference between what the work reasonably cost as directed and what it reasonably
would have cost as performed under the original contract terms.

Equitable Adjustment - Historical (actual) costs are presumed reasonable and the State
has a heavy burden of showing that the incurred cost should not have been expended or
was too high.

Interest - By statutorily waiving the defense of sovereign immunity in contract actions,
the State impliedly waived its immunity to interest on judgments entered in contract
cases.

Interest - Post-decision interest properly should be payable on the equitable adjustment
found due from the date of the Board's decision until payment. Interest should accrue at
the Legal Rate in the same manner as it does on judgments nisi pursuant to Rule 642 of
the Maryland Rules of Procedure.

Interest -- The award of predecision interest as part of an equitable adjustment lies
within the discretion of the Board.

Interest - Predecision interest was included in the award of an equitable adjustment but
did not commence to run until (1) the contractor submitted its monetary claim, (2) the
MPA had a reasonable opportunity to review it for accuracy and (3) the MPA had a
reasonable period to process the payment of the principal amount due.

Differing Site Condition - Where a contractor encountered original river bottom above
project grade in a "maintenance dredging" contract, it was found to be a "type 1"
differing site condition. The term "maintenance dredging" indicated that only materials
resulting from natural siltation would be encountered above project grade.

Differing Site Condition - A contractor was not obligated to verify, by site
investigation, contractual indications concerning subsurface conditions.

Differing Site Condition - The encountering of debris, the existence of which was ascertainable from a reasonable site investigation, was not a "type 2" differing site condition.





 
 
 
 

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