high, the real reason for the rejection was that the bid prices were higher than funds available for the project (Tr. 706, 707).

The design engineer and project inspector was Mr. Jack Bilderback." Although he was responsible for the initial design as well as the design incorporated into the second solicitation, his single visit to the project site was prior to the issuance of the second solicitation (Tr. 90, 99, 101, 449). This visit was sometime after the opening of the first bids on August 11, 1966, and prior to September 9, 1966. The visit, made in the company of Mr. Dave Erickson" and Mr. C.V. Sluyter," was for the specific purpose of exploring the project for rock and occupied one day (Tr. 451, 606, 608). Although Mr. Bilderback testified that the only site investigation data that existed prior to the first solicitation were some notes of visual observations by the Bureau of Public Roads survey crew, who had established the preliminary or P-line (Tr. 80, 96), and other testimony by Mr. Bilderback was to the effect that he personally made the design computations (Tr. 548, 549), all design

2 Tr. 77, 700, 701. Mr. Charles Walton, area engineer for the Federal Highway Administration, who reviewed and approved both solicitations, did not believe that all bids on the first solicitation were too high (Tr. 490).

3 Mr. Bilderback also prepared the findings of fact (Tr. 72). While we recognize that the contracting officer must rely on subordinates for information, combining the functions of design, inspection, and preparation of findings in the same individual has little to commend it.

4 Assistant Area Road Engineer at that time, later Area Road Engineer.

5 Area Road Engineer at the time.

computations on the project were made by the Federal Highway Administration on an IBM 1401 Computer (par. 35, Findings of Fact). See also Tr. 623.

The western section of the project was heavily timbered (Tr. 132), while the eastern section had previously been cleared by the Bureau of Indian Affairs (Tr. 474). Mr. Bilderback commenced his site investigation from the west end (Tr. 91, 451). He observed rock in the cut on the existing road approximately 800 to 1,000 feet from the beginning (station 0+00) of the instant project. Although he observed rock in a creek at station 14 in the western section (see photo No. 2, Exh. 46), he didn't think the rock in the creek would show up in the earth work for the road (Tr. 92, 616). He walked the western section through station 113 and other than a few small loose boulders didn't see anything that he considered would indicate rock.

He observed rock in a small stream at station five in the middle section and a large rock knob on the left hand side at around station 16 or 18. They (Bilderback & Erickson) were picked up by Mr. Sluyter at approximately station 100 to 120 (middle section) and they drove. over Potato Hill Road, which had rock sticking out all over, to a small lake at about station 160 (Tr. 93). There was a large rock knob near

On cross-examination Mr. Bilderback admitted that the existence of rock in this cut did not cause him to expect rock from station 0+00 to 14+00, west end (Tr. 616).

where they parked the car which the P-line went over. They walked back toward station 120 and observed exposed rock. They returned to the car and proceeded toward the eastern section. There were large, bare rock-knobs in the area where the east and middle sections joined (Tr. 94). Mr. Bilderback's total analysis was that the east side was predominantly rock, that the middle section was approximately onehalf rock and that there was very little, if any, rock on the west end (Tr. 89, 94). He indicated that Mr. Powell concurred with his projections as to rock (Tr. 95). He testified that he took these manifestations of rock into consideration in designing the project (Tr. 463). Rock influences the estimate of how much material is going to make a fill and also affects the nature of the cut slopes.8

7

9

After he had returned from his site visit and had calculated one set of balances Mr. Bilderback was in receipt of a report, dated September 9, 1966, from the Superintendent of the Yakima Agency concerning examinations and explorations of cut sections on Project YIR 50(4),

7 Mr. Collins Powell, Bureau engineer, was the contracting officer's authorized representative for the project (letter, dated April 9, 1968, Exh. 27).

8 Tr. 611. Although the plans (p. 2) indicate that a slope of 4 to 1 is for solid rock, Mr. Bilderback acknowledged that there were no slopes on the entire project with such a ratio and that the project was designed with a majority of the slopes on a ratio of 1% to 1 which is for a mixture of common and rock (Tr. 612-615). See also Slope Stake Notes (App's Exh. 16).

Balances refer to the expected amount of excavation as compared to the amount of material to be placed in embankment within a given section of roadway (Tr. 385).

Potato Hill Road, referred to herein as the "soils report" (Exh. 37). The report reflects the existence of solid rock at station 18+00, middle section, and that rock was on the surface at station 29+00. At 15 stations in the middle section, beginning at station 32+50 and continuing to station 163+00, test holes were dug with a backhoe. The holes indicated rock at depths varying from 0.3 feet to 5.7 feet below the surface. The report states practically all of the cut sections from station 163+00 [eastward] to the end of the project showed rock and boulders on the surface. The terrain from station 0+00 to 113+46 [west section] made it impractical to explore with a backhoe. The existence of this report was not made known to prospective bidders (Tr. 81, 607). Mr. Bilderback testified that he did not consider the information in the report would be helpful to bidders because the report merely confirmed what he found in the field.10

As previously noted all excavation on this project was unclassified. Mr. Bilderback's stated reason for unclassifying the job was that it was difficult to measure rock separately from earth on this type of a project and that he did not want to be haggling with the contractor as to what constituted rock (Tr. 88, 642, 643). The differences between the initial and revised design were that excavation quantities were reduced ap

10 Tr. 607. Mr. Erickson (note 4, supra) testified that the Bureau did not generally include soils information in its solicitations where the job was unclassified and bidders were expected to make their own determinations of the material to be encountered (Tr. 709, 710).

proximately one-third by eliminating the requirement for widened ditches and by changing the alignment, shrinkage factors were adjusted in line with rock excavation anticipated to be encountered and the requirement for crushed rock was eliminated, special subbase being substituted therefor (Tr. 99, 100, 450, 451; letter to Bureau of Public Roads, dated March 30, 1967, Exh. 35). The estimated price for excavation was increased by $.35 to $1 (Tr. 451). This estimate was considered reasonable by Mr. Walton of the Federal Highway Administration, who had made a "windshield survey" of the east section of the project sometime prior to the initial solicitation." He admitted, however, that their estimate would have been higher if they had realized the extreme difficulty on the east side (Tr. 496).

PHL SITE INVESTIGATION AND BID

PHL contractors is a joint venture consisting of Washington Construction Company and HillLyshaug, Inc. whose principals were Frank Propes and Tor Lyshaug, respectively. Mr. Propes had previously had a contract with the Bureau, referred to as "Moclips," which was located approximately three miles from the western termi

433, 434, 452). The firm had not bid on the first solicitation on the Potato Hill Road project (Tr. 107).

The prebid site investigation was made on or about October 24, 1967 by Mr. Lyshaug accompanied by Mr. Jill Adams (Tr. 158, 160, 309). Mr. Adams was a superintendent for PHL with extensive experience in construction (Tr. 109, 120, 189). They approached the project from the east and drove over the existing road which generally followed the P-line in this area. They concluded that the eastern section was predominantly rock, that a portion of the material could be ripped,12 and that drilling and shooting would be required in the deeper cuts (Tr. 161, 162). Mr. Lyshaug based his conclusion that some of the material could be ripped on the fact that fracture planes were visible in the rock (Tr. 304). He acknowledged that if rock was visible on the surface it was a logical conclusion that it extended below the surface (Tr. 303).

They parked the car at approximately station 200 to 205, middle section, and followed a trail that went past a lower lake and up into the hills until they ran into heavy snow. They were off of the P-line and were looking for the Case 1 borrow source (Tr. 312), which is to the south of the right-of-way at the eastern end of the middle section.

11 Tr. 481, 482, 489, 491, 495. He characterized this project as a "scratch job," that is one having shallow cuts and fills and stated "They are very difficult jobs to work because essentially you're trying to put 3 foot of rock into a 2-foot fill." (Tr. 485.)

lowed an old Indian road off of the

12 That it is reasonable to expect that at least some basalt material can be ripped was confirmed by Mr. Walton (Tr. 483) and by the Caterpillar Performance Handbook (Tr. 99).

right-of-way up a steep hill to the top of the project 13 and again parked the car near a pond at approximately station 159 middle section (Tr. 164, 307). There was a general knoll next to the pond which contained fractured rock at the surface (Tr. 308). They did not see anything which in Mr. Lyshaug's opinion could be characterized as a rock outcrop. Mr. Lyshaug and Mr. Adams then walked along the Pline in an easterly direction for some 2,000 feet (Tr. 165). This area was covered with forest growth and had an occasional outcrop of rock showing.

Upon returning in the direction of the car, they observed test holes at stations 160 and 142 (Tr. 166, 169). These test holes showed common dirt or dirt with an occasional fracture overrock.14 The test holes served to confirm Mr. Lyshaug's impression that the material in the area was common with rock fractures (Tr. 202, 741). However, he acknowledged that he made no at

13 The project commences at elevation 3.854 feet in the west, ascends to a high of 4,934 feet at station 162+00 in the middle section and then descends to 4,300 feet at station 279+30, east.

14 Tr. 169, photos on page 10 of App's Exh. 4. When asked on cross-examination why he did not inquire of the Bureau of Indian Affairs as to what the holes represented, Mr. Lyshaug replied "* * * that whatever an officer says to you what a test hole is, it doesn't mean a thing. I had to rely on my own judgment when I look in a test hole." (Tr. 312.) This, of course, is nothing more than a restatement of paragraph 2 "Conditions Affecting the Work" of the Instructions to Bidders (Standard Form 22, June 1964 Edition) which provides that the Government assumes no responsibility for representations made by any of its agents unless included in the invitation or related documents. See also Clause 13, "Conditions Affecting the Work," of the General Provisions.

tempt to probe or further investigate the test holes (Tr. 310, 311).

Mr. Lyshaug and Mr. Adams proceeded westward to the boundary of the Indian reservation at approximately station 120 middle section (Tr. 314). They did not see any rock outcrops. Returning to the car they drove over the road which leads to the point where the Cascade Crest Trail intersects the right-of-way at approximately station 95 middle section (Tr. 170). They parked the car and walked westward to approximately station 58, observing a test hole at station 66+50 (Tr. 172; photo, p. 10, App's Exh. 4). The test hole showed dirt with an occasional rock fracture. Returning to the car, they proceeded on a trail around Potato Hill (located to the north of the right-of-way at approximately station 120) to Midway Guard Station (Tr. 172) which is located slightly over one mile north of the right-of-way. Driving south on the Trout Lake Road, referred to as the road to Crystal Lake by Mr. Lyshaug, they reentered the rightof-way at station 5+52.15 They walked eastward to approximately station 50, observing that the area. required medium to light clearing and that there were a few scattered boulders on the surface which Mr. Lyshaug referred to as "floaters.” He defined a boulder as a rock of a foot and a half to two feet in diam

15 Tr. 172, 173. Although Mr. Lyshaug referred to this area as station 0. middle section. the plans (Exh. B) reflect that Trout Lake Road intersects the right-of-way at station 5+52 and that the middle section commences at station 5+25.

eter and stated that "*** you figure you could handle them with a dozer." (Tr. 174.)

Retracing their steps, they proceeded westward to where the heavy timber commenced at approximately station 80, western section (Tr. 175). They then returned to the car and approached the project from the west at station 0+00 (Tr. 175, 176). They crossed the creek at station 14, observing rock in the creek and walked eastward to approximately station 28 (Tr. 177). The site exploration was discontinued because of darkness. Mr. Lyshaug was of the belief that the heavy stand of timber (estimated at 60,000 to 70,000 board feet per acre) made it reasonable to expect from ten to 15 feet of soil cover (Tr. 177).

The plans reflected the amount of excavation and the amount of material to be placed in embankment. For example, the first balance point between station 0+00 and 2+ 15 in the west section reflects excavation of 369 cubic yards and embankment of 259 cubic yards. This indicates that 369 cubic yards of excavation are expected to fill 259 cubic yards. of embankment (Tr. 192, 193). This difference, which is referred to as a shrink or compaction factor, is based upon the principle that common material shrinks when excavated and placed in a fill while rock swells.16 To Mr. Lyshaug, a shrink factor of approximately 30 percent

16 Mr. Ronald McReary, an expert witness for PHL, testified that rock swells 40 percent and often 60 percent when drilled and blasted (Tr. 36, 44, 45). In later testimony he asserted that the swell depends upon the hardness of

obviously meant common materials. The majority of design compaction factors in the western section were 30 percent except for 20 percent between stations 42+00 and 58+00 and ten percent between 98+00 and 102 +50 (Table I, p. 39, Findings of Fact). Design compaction factors in the middle section range from zero percent to minus 30 percent with the majority at minus ten percent. Design compaction factors in the eastern section were zero percent and ten percent. These figures were not shown on the plans, but vary only slightly from calculated factors using excavation and embankment quantities shown on the plans.18

According to Mr. Lyshaug, the significance of a set of plans that goes into such detail is that a prospective contractor can determine where the material is going to come from, where it is going to go and that a section of the roadway can be completely finished as the work proceeds (Tr. 191, 192). He testified that from the absence of a pay item for borrow and lack of a des

the rock, but that the swell would not be less than 15 percent and would not exceed 40 percent when drilled, blasted and placed in the fill (Tr. 398–402).

17 Tr. 193. The accuracy of this assumption is conceded by the contracting officer (pars. 78 and 90, Findings of Fact).

18 The calculated compaction factor from the plans reflects a plus 9.3 percent in the area between station 208+98 and 216+20, middle section and a plus 3.2 percent in the area between station 267+31 and 280+19, eastern section (Table I. Findings). However, both of these areas are indicated to have "forced balances," i.e., an arbitrary addition or subtraction of yardage in order to obtain a balance of excavation and embankment (Tr. 549).