In order to win a differing site condition claim, it is not enough to merely prove the government provided incorrect information about a site. Comtrol, Inc. v. United States, CAFC No. 01-5115 ruled a contractor also must have relied upon pre-award representations made by the government about site conditions in order to make a claim for a differing site condition.

Though the solicitation made were general remarks made about the soil there were no specific references about the soil but it did say a soils report was available at the architect’s office. The Court rejected the contractor’s claim for differing site conditions ruling since the contractor did not read the report it could not meet the condition for a differing site condition claim – reliance on the bid documents.

The case makes obvious that examination of any documents referenced or incorporated into a solicitation can be crucial if the information contained becomes important for performance. Failing to review information incorporated into the contract, but not provided with bid documents holds two dangers. Even if the report contains misleading information the contractor cannot base a claim on it unless the contractor relied on the misinformation during bid preparation. If the report contains information abut a problem area, the contractor cannot base a claim on the problem because it would have learned of it if the report was read.

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