52.236-2 Differing Site Conditions
Source: FAR 52.236-2 on acquisition.gov
Prompt written notification of differing site conditions is essential for contractors to preserve their right to an equitable adjustment under the contract.
Overview
FAR 52.236-2, Differing Site Conditions, establishes the procedures and requirements for contractors to follow when encountering site conditions that differ materially from those indicated in the contract or from those ordinarily encountered in similar work. The clause is designed to ensure that contractors are fairly compensated or adjusted for unforeseen physical conditions that could impact cost or schedule. Prompt written notification to the Contracting Officer is required before disturbing the conditions, and the Contracting Officer must investigate and determine if an equitable adjustment is warranted. Failure to provide timely notice or requests made after final payment will bar the contractor from receiving an adjustment.
Key Rules
- Prompt Written Notice
- Contractors must provide written notice to the Contracting Officer before disturbing any differing site conditions.
- Types of Differing Conditions
- Covers both subsurface/latent conditions differing from contract indications and unknown, unusual physical conditions not typically encountered.
- Equitable Adjustment
- If conditions materially differ and affect cost or time, an equitable adjustment to the contract is required.
- Timeliness of Requests
- Requests for adjustment must be made before final payment and only if proper notice was given, unless the Contracting Officer extends the notice period.
Responsibilities
- Contracting Officers: Investigate reported conditions, determine if an equitable adjustment is warranted, and modify the contract as needed.
- Contractors: Promptly notify the Contracting Officer in writing of differing site conditions and submit timely requests for adjustment.
- Agencies: Ensure oversight and compliance with notification and adjustment procedures.
Practical Implications
- This clause protects both contractors and the government from unforeseen site conditions that could impact project cost or schedule.
- Contractors must be diligent in identifying and reporting differing conditions to preserve their rights to an adjustment.
- Failure to follow notification procedures is a common pitfall that can result in denied claims for additional compensation or time.
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 paragraph (a) of this clause 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)