DocketNumber: No. 495-81C
Citation Numbers: 230 Ct. Cl. 1020
Judges: Friedman, Kashiwa, Nichols
Filed Date: 5/28/1982
Status: Precedential
Modified Date: 11/23/2022
(1) Subsurface or latent physical conditions at the site differing materially from those indicated in the contract, or
(2) Unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract.
The contracting officer refused to make any adjustment, and this suit followed.
We are unable to state that interference with the work by a volcanic eruption is not and never can be compensable for added cost by an adjustment under the second changes clause quoted above. The contracting officer seems to have supposed that the Armed Services Board of Contract Appeals in Hardeman-Monier-Hutcherson, ASBCA No. 12392, 68-2 B.C.A. (CCH) ¶7220, held that severe weather and other "Acts of God” are outside the clause. But in our review, affirming the result, we held we could not decide under so sweeping a rule of exclusion. Hardeman-Monier-Hutcherson v. United States, 198 Ct. Cl. 472, 486, 458 F.2d 1364, 1371 (1972).
The claim does appear to be outside the termination article and the first changes clause. Defendant is not
If we were to hold for plaintiff, therefore, we would need clear-cut fact findings answering the questions naturally raised by the second changes clause and the numerous adjectives, adverbs, and participles making it up.
Therefore, both motions for summary judgment are denied and the cause is remanded to the trial division for further proceedings.
IT IS SO ORDERED.
On August 18, 1982 the petition was dismissed pursuant to Rule 102(a)(l)(ii).