ignated borrow source together with the statement that it was anticipated that hauling of excavated material in excess of 1,000 feet would be nominal 19 and that no separate payment would be made for overhaul, the contractor would have to assume that there was sufficient material within a balance point to complete the operation including finishing (Tr. 208-211). Mr. McReary testified that in order to determine balance points, the designer needs information as to soil conditions or his balance points may well be meaningless (Tr. 386).

Although anticipating that a substantial amount of drilling and shooting would be required in the east section and in the eastern portion of the middle section, PHL evaluated the job as basically a scraper and dozer operation. They considered that the Government must have evaluated the job in essentially the same way since PHL's bid price of $1.10 per cubic yard for excavation compared favorably

20

19 Planned overhaul (haul in excess of 1,000 feet) ranging from 5 to 739 feet was contemplated at 14 balance points (Exh. 45). PHL concedes that it anticipated a small amount of overhaul at station 270+ in the eastern section (p. 2 claim letter of November 5, 1969, Exh. 6).

20 Tr. 114, 115, 219, 238, 239. Although Mr. Propes testified that he was told by Tor and Jill that they observed rock outcroppings on the west end of the job (Tr. 108, 113), we conclude that he was confused for he stated the reason they did not see all of the west end of the job was because of snow (Mr. Lyshaug testified that there was no snow on the west end. Tr. 297), and as we have seen the only rock outcrops other than those in the creek observed by Mr. Lyshaug and Mr. Adams during their site inspection were in the east section and east of the pond, at station 160, middle section.

with the Government's estimate of $1 (Tr. 213). Other bids apparently ranged up to $1.30 per cubic yard for excavation and total estimated prices ranged up to $800,000 (Tr. 374).

Contract Performance

The contract provided that the work would be completed within 480 days after receipt of the Notice to Proceed. It also provided that the special subbase on the 9.229 miles of previously constructed roadbed would be completed prior to September 30, 1968. Article 20.10 of the Special Provisions stated that the Notice to Proceed would be issued on or about June 1, 1968. However, because the snow cover on the western end of the project was unusually low and because PHL desired to proceed with the clearing as soon as possible in order to minimize the amount of clearing work during the dry, fire season, PHL requested and was granted a Notice to Proceed commencing on April 16, 1968, thereby establishing August 8, 1969 as the completion date (letters of March 26 and April 16, 1968, Exhs. 12 & 13, respectively).

PHL contemplated attacking the project from west and the east simultaneously (Tr. 217). The west end was to be supervised by Mr. Jack Adams and the east end was to be directed by Mr. Propes and Jill Adams while Mr. Lyshaug was to coordinate the work and look after engineering details (Tr. 119). Drilling and shooting operations

were subcontracted to Frank Adams (Tr. 121, 122; Contractor's Questionnaire, dated June 1, 1968, Exh. 14).

Excavation in the east section commenced on or about May 24, 1968 (entry of even date, Project Diary, App's Exh. 9). It was important that the eastern section be completed as soon as possible in order that the special subbase could be hauled to the previously constructed road which the contract required be completed prior to September 30, 1968. They immediately hit solid rock which they were unable to rip. In the words of Mr. Propes *** all we could do then was pioneer ahead and skip here and there and try to find some material we could rip." (Tr. 122.) This situation continued through the first two cuts and it was not until the third cut (station 268 to 253) that they found material which could be partially ripped. They sent for another track drill.22

21

The rock in these cuts came out in boulders of from two to six feet in diameter, resulting in a shortage of material suitable for finishing the

21 Tr. 121-124; Project Diary, entry of May 24, 1968. Mr. Bilderback testified that there was not a cut on the entire project which he would classify as completely solid rock (Tr. 474). However, we accept his characterization of the rock made prior to the dispute (Project Diary of May 24, 1968). Similar references to "solid rock" appear in numerous other diary entries.

22 Tr. 121, 123. Drilling operations commenced on the east end with one drill on or about June 5, 1968. A second drill was brought to the job on or about June 11 and a third drill was on the job in the eastern section on June 24, 1968. (Daily Log of dates cited, Gov't's Exh. B.)

grade.23 Mr. Propes testified that this was the first job that he had ever seen that was of this nature (Tr. 125) and that "Anytime you have that deep a cut, you would normally get, no matter whether you drilled it or shot it or ripped it, you would normally get enough finish, to bring the road up to grade." (Tr. 335.) Mr. Walton of the Federal Highway Administration, although anticipating that the section of the project he observed contained rock, did not anticipate any difficulty in obtaining adequate finishing materials (Tr. 482, 483, 501). The consequence of the lack of finishing material was that PHL was unable to complete the work in a station to station sequence as planned. The Government ultimately recognized the lack of finishing material and provided for overhaul, that is haul in excess of 1,000 feet, by Change Order No. 2 dated June 30, 1969 (Exh. 3 and Justification for Change Order No. 2, App's Exh. 12). PHL's claim for costs of grading changes caused by the Government's refusal to provide for borrow

is considered infra.

Contrary to its expectation, PHL immediately ran into rock from station 000 to 14, western section. (Tr. 220, 223.) Since PHL was not equipped for a drilling and shooting operation in this section, they proceeded to open up other areas where excavation could be accomplished

Tr. 125-127, 136, 149, 150, 236, 237, 336339, 344. The top four inches of subgrade was to be composed of material which would pass three-inch screen (Articles 102-3.10 and 106-3.4 of FP-61).

a

with bulldozers rather than proceeding from station to station as required by the contract (Tr. 221, 224).

They found material that could be moved with bulldozers between stations 42 and 52. There was an error in the P-line survey, referred to as a “bust,” which required resetting

of the center line between station 0 +00 and station 48.24 The grade was raised two feet between station 0 + 00 and station 40. Nevertheless, there was an excess of material in this area.25 There were also survey and staking errors at station 58 making necessary a one foot cut for 150 feet (Project Diary, July 9 and 10, 1968).

PHL also encountered excess material in the area between stations 65 and 73, making it impossible to complete the cut (Tr. 224-226). A diary entry of June 27, 1968, states that the road is just about to grade from station 49 to 90 except the cut at station 69 which has considerable waste. The grade between stations 65 and 76 was raised three feet on July 18 1968, in order to eliminate wasting of excess material (Tr. 320, 324, 326; Project Diary of even date). Nevertheless, photos of the

24 Tr. 509; Project Diary entries of June 24, June 26, June 27. June 28, July 1 and July 2, 1968. App's Exh. 9.

The Diary entry of July 1. 1968, states that the area between station 30 and station five (west end) appeared to be all cut and no fill. Photos dated September 6. 1968 and June 21, 1969, show piles of boulders at sta tion 0+00 (p. 10, App's Exh. 4). These were eventually hauled to the fill at station 14 under Change Order No. 2.

completed road in this area show excess material which was wasted beyond the clearing line into the trees (p. 17, App's Exh. 4). Grading in this area was not completed until late August of 1969 (Tr. 327). Delay in completing the west section was due in part to the encountering of unanticipated rock and in part to actions of the project inspector.26

Areas in the west and middle sections where PHL encountered rock are shown on the mass diagram (App's Exh. 2) as follows:

28 Mr. Lyshaug testified that the delay was attributable to the drilling and shooting remaining to be accomplished and to the refusal of the contracting officer's representative, meaning Mr. Bilderback, to make a decision as to the disposition of excess material until it could be determined how the next balance was going to come out (Tr. 228, 231, 240, 325327). However, diary entries concerning discussions with PHL representatives indicate the decision to discontinue operations in 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 special subbase material (Project Diary of July 8 and 12, 1968). We accept Mr. Lyshaug's testimony because as we find infra, it is consistent with other actions of the project inspector and because the Justification for Change Order No. 2, dated June 26, 1969 (App's Exh. 12), indicates the overhaul of excess material from stations 51 to 70 to stations five and 15, west section. The need for additional material at station five was apparently due to the grade change (Tr. 225).

45 thru 48....

88 thru 94__. 101 thru 103+50---105 thru 110_ 115+50 thru 121__. 124+50 thru 125+50

127 thru 132+20---140 thru 150+50---156+50 thru 161____ 177 thru 184+20---189 thru 194..

198 and 199_ 203 and 204_

24+90 27+40 thru 27+60

31 thru 34 37 thru 40+80 52 thru 55 64 thru 70+20 78+80 thru 80+80 88 thru 94 115 thru 121 127 thru 132+20 141 thru 150 157+60 thru 159+50 181 thru 184+50 188 thru 200

202 thru 228+53 **

27

reasons: (1) all but one of the six large tractors (four C-6's, a D-9 and a D-8) which were on the job at various times, were equipped with a ripper as well as a bulldozer and records of when one operation or the other were being performed were not maintained (Tr. 244, 245); and (2) confusion as to the location. of work being performed.28 The Government has made no serious attempt to dispute the presence of rock at the locations as shown and we accept the mass diagram as substantially accurate in this respect.

PHL placed the Government on notice that it had encountered rock in the upper (middle) and western sections of the job, despite the fact that the contract indicated this would be common excavation, in a letter dated September 10, 1968 (Exh. 8).

PHL suspended operations for the winter on October 7, 1968 (Project Diary of even date). At this time only the sections from 224 to 229 and from 260 to the end of the project in the eastern section were finished while the balance of this section was not to 3/10 of a foot tolerance as required (Findings, Par. 132; Project Diary of June 19, 1969). From station 120 to 224 in the middle section, the grade was just roughed in. About half the excavation was completed in the area from station 100 to 120, middle section. In the area from station five to 100, middle section, virtually no

28 Because of the overlapping station numbers, personnel maintaining the records were frequently confused as to the location of various work operations.

excavation had been accomplished. From station 35 to 113, west end, most of the excavation had been done, but the grade was not to specification tolerances.

Work was resumed on the project on July 7, 1969 (Project Diary of even date). Completion of the project was subcontracted to Hall International because PHL was no longer able to finance the work.29 The project was accepted as complete on September 16, 1969, two weeks after the completion date of September 2, as extended (Daily Log of September 16, 1969; Construction Inspection Report dated September 16, 1969, Exh. 25). The contract did not contain a liquidated damages clause and the Bureau has not attempted to assess any charges for the delayed completion (memorandum, dated September 19, 1969, Exh. 26).

Discussion and Further Findings

PHL asserts that it encountered subsurface rock where the contract and plans indicated the presence of common material. Based on the established principle that rock swells when excavated and placed in the fills while common material shrinks (note 16, supra), PHL argues that the compaction factors calculated from the excavation and embankment quantities shown within the balance points on the plans reasonably led it to expect common material in the western section, com

20 Tr. 142, 155, 156; Project Diary of June 26 and July 3, 1969. It appears that PHL lost between $160,000 and $170,000 in 1968 (Tr. 214).

mon with some rock in the middle section and that the rock in the eastern section was rippable and would yield ample materials for finishing (Brief, pp. 12-16, 20; Reply Brief, pp. 4, 5 and 12). PHL contends that its expectations of the materials to be encountered as derived from its site inspection and compaction factors calculated from the plans were strengthened by the fact the contract specified that overhaul would be nominal, that no borrow sources or waste disposal areas were designated on the plans, that the contract required the top four inches of subgrade be finished with material which would pass a three-inch screen and that the grade was to be finished to within 10 of a foot as the work proceeded. PHL also relies upon the Government's failure to disclose the information in the soils report (Exh. 37).

PHL contends that it reasonably anticipated that 41 percent of the excavation would be rock (in the eastern section and eastern portion of the middle sections), whereas rock actually encountered amounted to 87 percent of the excavation (claim letter, dated November 5, 1969; Brief, p. 22). PHL also contends that it anticipated a balanced job, i.e., that excavation quantities within the balance points on the plans would compact to the embankment quantities within such points, whereas not one of such points actually balanced and that this condition as well as the lack of finishing material is attributable to the fact the project was designed for