As prescribed in 36.502, insert the following clause:
Differing Site Conditions (APR 1984)
(a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract.
(b) The Contracting Officer shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this clause and the contract modified in writing accordingly.
(c) No request by the Contractor for an equitable adjustment to the contract under this clause shall be allowed, unless the Contractor has given the written notice required; provided, that the time prescribed in (a) above for giving written notice may be extended by the Contracting Officer.
(d) No request by the Contractor for an equitable adjustment to the contract for differing site conditions shall be allowed if made after final payment under this contract.
(End of clause)
[48 FR 42478, Sept. 19, 1983, as amended at 60 FR 34761, July 3, 1995]
Notes of Decisions
George Sollitt Constr. Co. v. United States, 64 Fed. Cl. 229 (Fed. Cl. 2005).
· cites it 5× “See 48 C.F.R. § 52.236-2 (a), (c) (1994) (“No request by the Contractor for an equitable adjustment to the contract under this clause shall be allowed, unless the Contractor has given the written notice required [before the conditions are disturbed] ----”).”
Rda Constr. Corp. v. United States, 132 Fed. Cl. 732 (Fed. Cl. 2017).
· cites it 3× “48 C.F.R. § 52.236-2 (a)-(b). 11 . Modifications 1-3 made administrative changes to the October 13, 2009 Contract.”
L.W. Matteson, Inc. v. United States, 61 Fed. Cl. 296 (Fed. Cl. 2004).
· cites it 4× “In this case, the only provision in the contract dealing with differing site conditions is Paragraph 60, Section 00700, which incorporates 48 C.F.R. § 52.236-2 . In Olympus Corp. v.”
Great Lakes Dredge & Dock Co. v. United States, 60 Fed. Cl. 350 (Fed. Cl. 2004).
· cites it 2× “See 48 C.F.R. § 52.236-2 . Thus, the issues regarding improper risk shifting were resolved prior to bid submission, and do not constitute a proper basis for cancelling the solicitation.”
Metcalf Constr. Co. v. United States, 742 F.3d 984 (Fed. Cir. 2014).
“48 C.F.R. § 52.236-2 . The RFP and pre-bid documents set out an understanding of how that provision would be applied to soil conditions.”
Meridian Eng'g Co. v. United States, 122 Fed. Cl. 381 (Fed. Cl. 2015).
· cites it 4× “48 C.F.R. § 52.236-2 . 32 . In this case, the contract incorporates a "differing site conditions” clause, FAR 52.”
Extreme Coatings, Inc. v. United States, 109 Fed. Cl. 450 (Fed. Cl. 2013).
· cites it 2× “The Federal Circuit also noted that to prevail on a Type I differing site conditions claim, “‘the contractor must prove, by a preponderance of the evidence, that the conditions indicated in the contract differ materially from those it encounters during performance.”
Comtrol, Inc. v. United States, 294 F.3d 1357 (Fed. Cir. 2002).
“Soil Conditions The Solicitation included the standard Federal Acquisition Regulation (“FAR”) *1360 clauses for differing site conditions and site investigations, 48 C.F.R. §§ 52.236-2 and 52.236-3 (1994), and the standard changes clause, 48 C.”
Renda Marine, Inc. v. United States, 509 F.3d 1372 (Fed. Cir. 2007).
“236-2, 48 C.F.R. § 52.236-2 (a)-(b) (2006). It is distinguished from a Type II differing site condition, which arises when the conditions encountered are of an unusual nature and differ materially from those normally encountered in the kind of work contemplated by the contract.”
— 48 C.F.R. § 52.236-2(a)(l) — 1 case
Rda Constr. Corp. v. United States, 132 Fed. Cl. 732 (Fed. Cl. 2017).
“48 C.F.R. § 52.236-2 (a)-(b). 11 . Modifications 1-3 made administrative changes to the October 13, 2009 Contract.”
— 48 C.F.R. § 52.236-2(b) — 1 case
Meridian Eng'g Co. v. United States, 122 Fed. Cl. 381 (Fed. Cl. 2015).
“48 C.F.R. § 52.236-2 . 32 . In this case, the contract incorporates a "differing site conditions” clause, FAR 52.”
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