Section 8.7 Differing Site Conditions—Public Works Projects

• Library: Construction Law 2016 Supp

F. (§8.7) Differing Site Conditions—Public Works Projects

Missouri courts have developed an extensive body of law related to claims for additional compensation for differing site conditions on public works projects. These cases establish a claim in the nature of a breach of warranty. The lead case is Ideker, Inc. v. Missouri State Highway Commission, 654 S.W.2d 617, 621 (Mo. App. W.D. 1983) (plans indicated that excavation work was “balanced” job). The Ideker court set forth the six elements for the cause of action, which are:

1. a positive representation by a governmental entity

2. of a material fact related to a site condition

3. that is false or incorrect;

4. lack of knowledge by a contractor that the representation is false or incorrect;

5. reliance by a contractor on the representation; and

6. damages sustained by a contractor as a direct result.

The Ideker, 654 S.W.2d 617, court noted that “boiler plate” disclaimers as to the accuracy of site conditions shown on plans and specifications did not negate “positive representations” of fact, but these disclaimers might negate “implied or suggestive” representations. See Sanders Co. Plumbing & Heating, Inc. v. City of Independence, Mo., 694 S.W.2d 841, 846 (Mo. App. W.D. 1985). In Sanders the author of Ideker dissented because he believed that auger boring logs dated April–June 1974 may have shown the actual subsurface water conditions then present but that these logs were only suggestive of conditions that might be present by the October 15, 1976, date of advertisement for bids. Id. at 848 (Somerville, J., dissenting).

Ideker, 654 S.W.2d 617, was preceded by Clark v. City of Humansville, Missouri, 348 S.W.2d 369 (Mo. App. S.D...