Type I and Type II Differing Site Conditions Claims

July 01, 2025 — David Adelstein - Florida Construction Legal Updates
In government contracting, there is a Federal Acquisition Regulation (FAR) on differing site conditions. See F.A.R. 52-236-2. This regulation, and the standard, would apply outside of government contracting when you hear about differing site conditions claims. I. TYPE I DIFFERING SITE CONDITIONS A type 1 differing site conditions claim occurs when “[s]ubsurface or latent physical conditions at the site which differ materially from those indicated in the contract.” See F.A.R. 52-236-2(a)(1). For a contractor to prevail on a type I differing site conditions claim, the contractor MUST PROVE the following 4 elements:

1. that a reasonable contractor reading the contract documents as a whole would interpret them as making a representation as to the site condition;
2. that the actual site conditions were not reasonably foreseeable to the contractor based upon information available to the contractor outside of the contract documents;
3. that the contractor reasonably relied upon the contract documents; and
4. that the conditions differed materially from those presented in the contract documents and the contractor suffered damages as a result.

Appeal of-Skanska USA Civil Southeast, Inc., ASBCA 61220 (ASBCA 2025) (citation omitted). Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com