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ignated borrow source together with the Government's estimate of with the statement that it was $1 (Tr. 213). Other bids apparently anticipated that hauling of exca- ranged up to $1.30 per cubic yard vated material in excess of 1,000 feet for excavation and total estimated would be nominal 19 and that no sep- prices ranged up to $800,000 (Tr. arate payment would be made for 374). overhaul, the contractor would have to assume that there was sufficient
Contract Performance material within a balance point
The contract provided that the to complete the operation includ
work would be completed within 480 ing finishing (Tr. 208–211). Mr.
days after receipt of the Notice to McReary testified that in order to
Proceed. It also provided that the determine balance points, the de
special subbase on the 9.229 miles signer needs information as to soil conditions or his balance points may
of previously constructed roadbed
would be completed prior to Sepwell be meaningless (Tr. 386).
tember 30, 1968. Article 20.10 of Although anticipating that a sub
the Special Provisions stated that stantial amount of drilling and
the Notice to Proceed would be isshooting would be required in the
sued on or about June 1, 1968. Howeast section and in the eastern por- because the snow cover on the tion of the middle section, PHL
western end of the project was unevaluated the job as basically a
usually low and because PHL descraper and dozer operation.20 They sired to proceed with the clearing considered that the Government
as soon as possible in order to minmust have evaluated the job in es
imize the amount of clearing work sentially the same way since PHL's
during the dry, fire season, PHL bid price of $1.10 per cubic yard for
requested and was granted a Notice excavation compared favorably
to Proceed commencing on April 16,
1968, thereby establishing August 8, 19 Planned overhaul (haul in excess of 1.000 feet) ranging from 5 to 739 feet was contem
1969 as the completion date (letters plated at 14 balance points (Exh. 45). PHL of March 26 and April 16, 1968, concedes that it anticipated a small amount of overhaul at station 270+ in the eastern
Exhs. 12 & 13, respectively). section (p. 2 claim letter of November 5, 1969,
PHL contemplated attacking the Exh. 6).
21 Tr. 114, 115, 219, 238, 239. Although Mr. project from west and the east siPropes testified that he was told by Tor and
multaneously (Tr. 217). The west Jill that they observed rock outcroppings on the west end of the job (Tr. 108, 113), we end was to be supervised by Mr.
Jack Adams and the east end was the reason they did not see all of the west end of the job was because of snow (Mr. Lyshaug to be directed by Mr. Propes and testified that there was no snow on the west end, Tr. 297), and as we have seen the only
Jill Adams while Mr. Lyshaug was rock outcrops other than those in the creek
to coordinate the work and look observed by Mr. Lyshaug and Mr. Adams during their site inspection were in the east after engineering details (Tr. 119). section and east of the pond, at station 160, middle section.
Drilling and shooting operations
conclude that he was confused for he stated
October 23, 1973
were subcontracted to Frank Adams grade.23 Mr. Propes testified that (Tr. 121, 122; Contractor's Ques- this was the first job that he had tionnaire, dated June 1, 1968, Exh. ever seen that was of this nature 14).
(Tr. 125) and that “Anytime you Excavation in the east section have that deep a cut, you would commenced on or about May 24, normally get, no matter whether you 1968 (entry of even date, Project drilled it or shot it or ripped it, Diary, App's Exh. 9). It was im- you would normally get enough fin
, portant that the eastern section be ish, to bring the road up to grade." completed as soon as possible in (Tr. 335.) Mr. Walton of the Fedorder that the special subbase could eral Highway Administration, albe hauled to the previously con- though anticipating that the section structed road which the contract re- of the project he observed contained quired be completed prior to Sep-rock, did not anticipate any difficultember 30, 1968. They immediately ty in obtaining adequate finishing hit solid rock which they were un
materials (Tr. 482, 483, 501). The able to rip.21 In the words of Mr. consequence of the lack of finishing Propes
6* * * all we could do then material was that PHL was unable was pioneer ahead and skip here and to complete the work in a station to there and try to find some material station sequence as planned. The we could rip.” (Tr. 122.) This situ- Government ultimately recognized ation continued through the first the lack of finishing material and two cuts and it was not until the provided for overhaul, that is haul third cut (station 268 to 253) that in excess of 1,000 feet, by Change they found material which could be Order No. 2 dated June 30, 1969 partially ripped. They sent for an- (Exh. 3 and Justification for other track drill.22
Change Order No. 2, App's Exh. The rock in these cuts came out
12). PHL's claim for costs of gradin boulders of from two to six feet ing changes caused by the Governin diameter, resulting in a shortage
ment's refusal to provide for borrow of material suitable for finishing the
is considered infra.
Contrary to its expectation, PHL 21 Tr. 121-124; Project Diary, entry of immediately ran into rock from staMay 24, 1968. Mr. Bilderback testified that there was not a cut on the entire project which
tion 0 + 00 to 14, western section. he would classify as completely solid rock (Tr. (Tr. 220, 223.) Since PHL was not 474). However, we accept his characterization of the rock made prior to the dispute (Project
equipped for a drilling and shooting Diary of May 24, 1968). Similar references to operation in this section, they pro"solid rock" appear in numerous other diary entries.
ceeded to open up other areas where 22 Tr. 121, 123. Drilling operations com- excavation could be accomplished menced on the east end with one drill on or about June 5, 1968. A second drill
23 Tr. 125–127, 13, 140, 150, 238, 237, 336 brought to the job on or about June 11 and a 339, 344. The top four inches of subgrade was third drill was on the job in the eastern to be composed of material which would pass section on June 24, 1968. (Daily Log of dates
screen (Articles 102-3.10 and cited, Gov't's Exh. B.)
106-3.4 of FP-61).
with bulldozers rather than proceed- completed road in this area show exing from station to station as re- cess material which was wasted bequired by the contract (Tr. 221, yond the clearing line into the trees 224).
(p. 17, App's Exh. 4). Grading in They found material that could be
this area was not completed until moved with bulldozers between sta- late August of 1969 (Tr. 327). Delay tions 42 and 52. There was an error
in completing the west section was in the P-line survey, referred to as
due in part to the encountering of a “bust,” which required resetting unanticipated rock and in part to acof the center line between station 0 tions of the project inspector.26 + 00 and station 48.24 The grade was
Areas in the west and middle secraised two feet between station 0 + tions where PHL encountered rock 00 and station 40. Nevertheless, there are shown on the mass diagram was an excess of material in this (App's Exh. 2) as follows: area.25 There were also survey and staking errors at station 58 making
WEST necessary a one foot cut for 150 feet
Ripped (Project Diary, July 9 and 10,
Drill & Shoot 1968).
1+25 thru 4.
15 to 16 18 thru 26_
18 thru 22 PHL also encountered excess ma- 31 thru 35_
25 and 26 terial in the area between stations 38 thru 42_
32+90 to 33+90 65 and 73, making it impossible to 55+25 to 57+25---- 83 and 84 complete the cut (Tr. 224-226). A
67 thru 70.---
102 diary entry of June 27, 1968, states
105 and 106_-. that the road is just about to grade from station 49 to 90 except the cut 28 Mr. Lyshaug testified that the delay was at station 69 which has considerable
attributable to the drilling and shooting re
maining to be accomplished and to the refusal waste. The grade between stations of the contracting officer's representative,
meaning Mr. Bilderback, to make a decision 65 and 76 was raised three feet on
as to the disposition of excess material until July 18 1968, in order to eliminate it could be determined how the next balance
was going to come out (Tr. 228, 231, 240, 325wasting of excess material (Tr, 320, 327). However, diary entries concerning dis324, 326; Project Diary of even
cussions with PHL representatives indicate
the decision to discontinue operations in the date). Nevertheless, photos of the west section was due to a desire to finish the
higher elevations of the project first and to
finish grading in the east in order to haul 24 Tr. 509 ; Project Diary entries of June 24, special subbase material (Project Diary of June 26, June 27, June 28, July 1 and July 2, July 8 and 12, 1968). We accept Mr. Lyshaug's 1968. App's Exh. 9.
testimony because as we find infra, it is 2 The Diary entry of July 1, 1968, states consistent with other actions of the project that the area between station 30 and station inspector and because the Justification for five (west end) appeared to be all cut and no Change Order No. 2, dated June 26, 1969 fill. Photos dated September 6, 1968 and (App's Exh. 12), indicates the overhaul of June 21, 1969, show piles of boulders at sta- excess material from stations 51 to 70 to tion 0+00 (p. 10, App's Exh. 1). These were stations five and 15, west section. The need eventually hauled to the fill at station 14 for additional material at station five was under Change Order No. 2.
apparently due to the grade change (Tr. 225).
October 23, 1973
reasons: (1) all but one of the six 21+50 to 24+90 8 and 9
large tractors (four C-6's, a D-9 30+50 to 34--
16+50 thru and a D-8) which were on the job 18+75
at various times, were equipped 37 thru 40+80---- 21+90 thru
with a ripper as well as a bulldozer 24+90
and records of when one operation 1.5 thru 48.
or the other were being performed XS thru 94.
31 thru 34
were not maintained (Tr. 244, 245); 101 thru 103+50---- 37 thru 40+80 and (2) confusion as to the location 105 thru 110_----- 52 thru 55
of work being performed.28 The 115+50 thru 121.--- 64 thru 70+20
Government has made no serious 124+50 thru 125+50 78+80 thru
attempt to dispute the presence of 127 thru 132+20_--- 88 thru 94
rock at the locations as shown and 140 thru 150+50--- 115 thru 121 we accept the mass diagram as sub156+50 thru 161. 127 thru 132+20 stantially accurate in this respect. 177 thru 184+20.--- 141 thru 150
PHL placed the Government on 189 thru 194..
notice that it had encountered rock
159+50 198 and 199_
181 thru 181+50 in the upper (middle) and western 203 and 204_
188 thru 200 sections of the job, despite the fact 202 thru
that the contract indicated this 228+53 2
would be common excavation, in a 27 This list differs somewhat from the areas where PHL allegedly did not anticipate rock
letter dated September 10, 1968 (p. 4, Exh. 7; App's Exh. 10), which are as (Exh: 8). follows:
PHL suspended operations for 0 +00 to 2+15 66 +77 to 75+84 2 +15 to 4+06 75+84 to 83+58
the winter on October 7, 1968 (Proj14+73 to 20+98 83+ 58 to 91+59
ect Diary of even date). At this 20+98 to 30+73 91+59 to 39+08 30+-73 to 37+95 99+08 to 107+70 time only the sections from 224 to 37+95 to 42+63 128+68 to 138+73
229 and from 260 to the end of the 6+53 to 17+92 138 + 73 to 141 +10 24 + 90 to 35+85 144 +10 to 154463 project in the eastern section were 35 + 85 to 47 +14 154+63 to 157 + 15
finished while the balance of this 47+14 to 55+72 178+45 to 188+79 55+ 72 to 66+77 188+79 to 197 +51 section was not to 3/10 of a foot These areas where rock was en
tolerance as required (Findings, countered are derived from PHL Par, 132; Project Diary of June 19, and Government records (Tr. 31,
1969). From station 120 to 224 in 53). Our review of the Daily Log
the middle section, the grade was (Gov't's Exh. B) and Project just roughed in. About half the exDiaries (App's Exh. 9) has enabled caration was completed in the us to verify almost in toto the areas area from station 100 to 120, middle where drilling and shooting opera
section. In the area from station five tions were conducted. We have been to 100, middle section, virtually no unable to verify to the same extent
28 Because of the overlapping station numthe areas which were assertedly bers, personnel maintaining the records were
frequently confused ripped. This is due to two principal
various work operations.
to the location of a
excavation had been accomplished. mon with some rock in the middle From station 35 to 113, west end, section and that the rock in the eastmost of the excavation had been ern section was rippable and would done, but the grade was not to yield ample materials for finishing specification tolerances.
(Brief, pp. 12–16, 20; Reply Brief, Work was resumed on the project pp. 4, 5 and 12). PHL contends that on July 7, 1969 (Project Diary of its expectations of the materials to even date). Completion of the proj- be encountered as derived from its ect was subcontracted to Hall Inter- site inspection and compaction facnational because PHL was no longer tors calculated from the plans were able to finance the work.29 The proj- strengthened by the fact the conect was accepted as complete on Sep- tract specified that overhaul would tember 16, 1969, two weeks after the be nominal, that no borrow sources completion date of September 2, as or waste disposal areas were desigextended (Daily Log of Septem- nated on the plans, that the contract ber 16, 1969; Construction Inspec- required the top four inches of subtion Report dated September 16, grade be finished with material 1969, Exh. 25). The contract did not which would pass a three-inch contain a liquidated damages clause screen and that the grade was to be and the Bureau has not attempted finished to within 310 of a foot as to assess any charges for the delayed the work proceeded. PHL also recompletion (memorandum, dated lies upon the Government's failure September 19, 1969, Exh. 26). to disclose the information in the
soils report (Exh. 37). Discussion and Further Findings PHL contends that it reasonably
anticipated that 41 percent of the PHL asserts that it encountered
excavation would be rock (in the subsurface rock where the contract and plans indicated the presence of
eastern section and eastern portion
of the middle sections), whereas common material. Based on the es
rock actually encountered amounted tablished principle that rock swells when excavated and placed in the
to 87 percent of the excavation
(claim letter, dated November 5, fills while common material shrinks (note 16, supra), PHL argues that
1969; Brief, p. 22). PHL also conthe compaction factors calculated
tends that it anticipated a balanced from the excavation and embank- job, i.e., that excavation quantities ment quantities shown within the
within the balance points on the balance points on the plans reason
plans would compact to the embankably led it to expect common ma
ment quantities within such points, terial in the western section, com
whereas not one of such points ac
tually balanced and that this condi20 Tr. 142, 155, 156 ; Project Diary of
tion as well as the lack of finishJune 26 and July 3, 1969. It appears that PAL ing material is attributable to the lost between $160,000 and $170,000 in 1968 (Tr. 214).
fact the project was designed for