Discussions of differing site conditions usually focus on the degree of difference. To what extent did actual conditions in the field differ from the representations in the contract documents? Or, to what extent did conditions in the field differ from the conditions a prudent contractor could reasonably expect on a project of that nature? Rarely is there any discussion of what constitutes a “condition.”

The Virginia Supreme Court recently addressed this question. High water levels of an unusually extended duration were not a latent physical condition that existed at the time of contract execution. Consequently, the duration could not constitute a “Type I” differing site condition, regardless of the extent to which it differed from representations in the contract documents. Fortunately for the contractor, the duration of the high water was so unprecedented that it could not have been anticipated and it constituted a “Type II” differing site condition.

Other cases this week involved a contractor’s entitlement to final payment and a bid protester’s e-mail submission gone awry. Approval of a state financing agency was a condition precedent to release of retainage and final payment by a local government entity. And, there was no substitute for submission of protest documents to the e-mail address stipulated in the federal regulations.