US Court of Appeals for the Federal Circuit

Case no.: 2024-1528
Date filed: June 30, 2026

The US Court of Appeals for the Federal Circuit has upheld the rejection of a claim for a differing site condition. Soil test borings from other sections of the site could not be relied upon. In addition, a contract provision involved methods of construction that had been amended prior to bid submittal.

The Army Corps of Engineers (USACE) solicited bids for reconstructing the banks of a portion of the Trapp Canal in Jefferson Parish, Louisiana. The canal ran north-south through the middle of the work area, bisecting it into east and west sections.

The contract documents included logs from 10soil test borings performed in 2008. Eight of the borings had been performed on the east bank of the canal. The two borings on the west bank were from the northern and middle sections of the work area.

The contract also included the following statement: “No barges will be allowed in the canal.” Prior to the date for bid submission, the solicitation was amended to delete this prohibition, instead stating: “The canal work may have to be performed using a floating platform, barge and/or other specialized equipment.”

USACE awarded the contract to Hamp’s Construction LLC. The contractor and its subcontractor, Cheniere Construction Inc., got to work. Operations on the northern portions of the canal banks went smoothly using equipment operating from the banks. The problems started on the southern portion of the west bank.

The contractor encountered multiple depressions indicating instability and subsidence in the bank. They decided it would be unsafe to operate loaded construction trucks on the southwestern embankment, opting instead to use equipment on barges. This increased construction costs and extended the performance period. Hamp’s Construction filed a claim for a differing site condition.

Hamp’s Construction argued that none of the 10 soil boring logs, including the two on the west bank of the canal, indicated unstable soil. This consistency implied that the contractor would encounter the same conditions in the southwestern embankment. They also contended that the original language of the bid solicitation prohibiting the use of barges in the canal suggested that the banks were suitable for heavy construction equipment.

USACE replied that Hamp’s Construction could not reasonably rely on boring logs from different sections of the project to indicate soil conditions in the southwestern area. And the contract, as awarded, expressly authorized the use of barges. The Armed Services Board ruled in favor of USACE. Hamp’s Construction appealed.

The Federal Circuit said that when it comes to reliance on soil boring logs, there is no bright-line rule as to how far is too far. It depends on the geologic and topographic features of the particular site.

In this case, the court noted that depressions in the southwestern portion of the bank had been observed and photographed by the subcontractor prior to bid submittal. This called into question the reasonableness of relying on soil boring logs from other sections of the project area where no depressions had been observed.

“Hamp’s Construction simply did not possess boring logs or other information indicating what the conditions were like on the southwest bank. . . . Given the Board’s finding, supported by substantial evidence, that conditions on the southwest bank were visibly different and worse than in other locations, the boring logs Hamp’s Construction possessed did not constitute indications to a reasonable contractor as to the conditions on the southwest bank.”

The court made short work of any reliance on the initial prohibition of barges: “This prohibition was removed from the solicitation before Hamp’s Construction made its bid.” The prohibition was replaced by language warning that barges may be needed to complete the work. A reasonable contractor would not rely on a deleted statement that was not part of the contract documents.

The physical proximity of soil test borings to the alleged differing subsurface conditions is a recurring issue. Because it defies a bright-line rule, it must be resolved on a case-by-case basis depending on the totality of the circumstances.

The contractor did the right thing by conducting, through its intended subcontractor, a pre-bid site inspection. However, the contractor did not account for observed conditions when planning the construction method.

Participants:
For Hamp’s Construction: Matthew Wayne Willis; Dyersburg, Tennessee
For the Army Corps of Engineers: Borislav Kushnir; Washington, D.C.
Before: Judges Lourie, Reyna, and Cunningham
Opinion by: Judge Cunningham
Outcome: Decision of the Armed Services Board of Contract Appeals affirmed

Source: Attach the complete opinion or decision PDF here.