Clients often times present problems with a project and explain the need to be compensated for the problems experienced.  But, having a consistent theory for recovery and evidence that supports that theory is always paramount to recovery.

I was reminded of this perhaps obvious corollary when reviewing an Armed Services Board of Contract Appeals decision.  The appeal involved a $35 million request for additional compensation based on differing site conditions, so not an insignificant claim.

The contractor claimed that it relied on the government’s geotechnical information to its detriment.  But, the Board rejected the claim because the project was a design/build project and the contract specifically stated that geotechnical information was the contractor’s responsibility.  More damaging to the contractor’s claims was the testimony from its own consultant that the contractor disregarded the consultant’s warnings and advice, including the consultant’s warning that its bid was too low.  Perhaps the death knell to the contractor’s claim was testimony that it submitted the low bid because it wanted its foot in the door in the Middle East to secure other business.

As damaging was the contractor’s own expert’s testimony that the site condition reports contained conflicting information and lacked the data a prudent geological engineer would require in order to reach reasonable conclusions.  The evidence also revealed that the contractor never visited the site, never requested a ground investigation and never hired geotechnical professionals to assess its proposed construction methods until after problems on site occurred.

Clearly the contractor had problems on this project, but even its own evidence, through the testimony of its consultants and experts, undermined its claim that it was harmed by relying on the government’s geotechnical reports.

Take Away: Having a theory of recovery is one step in the process to recovery.  But, having evidence that will support that theory of recovery is as, if not more, important.