common material but rock was encountered.

Although Mr. McReary acknowledged that material could not accurately be classified solely from compaction factors (Tr. 65, 66), the Government does not dispute PHL's contention that compaction factors are an indication of materials expected to be encountered.30 Mr. Bilderback, although emphasizing that compaction factors were an estimate, admitted that the contractor should have considered them as being reasonably accurate (Tr. 573, 620-622). Mr. Erickson testified that the contractor should not rely on the difference between the excavation and embankment of the materials to be encountered without visiting the site, but conceded that his opinion would be otherwise if the contractor visited the site and saw no reason to question the accuracy of the plans (Tr. 715, 716).

The Government concedes that the unanticipated rock encountered by PHL in the areas between station 0+00 and 37+95 in the western section probably constitutes a changed condition (Brief, p. 16). However, the Government asserts that PHL's site investigation was inadequate, that the soils report disclosed nothing which was not obvi

20 Findings, note 17, supra; Brief, p. 4. Interestingly, Mr. Walton testified that since this was a "scratch job" with shallow cuts and fills, the normal swell factor for rock does not apply in that the contractor should assume that some of the material would have to be wasted in widening the fill slopes (Tr. 485486, 495, 496). Other than an unsupported statement in the findings, there is no evidence that the project was designed or that the contract was administered with this concept in mind.

ous upon a reasonable site inspection, that conditions encountered were substantially as expected by the Bureau, that the amount of rock PHL alleges to have encountered is grossly overstated, and that any detriment suffered by PHL because of the changed condition in the western section was more than offset by the existence of common material in other areas where the Bureau expected, and PHL should have expected rock.

The details of the site investigations by Mr. Bilderback and Mr. Lyshaug recited earlier make it obvious that PHL's site inspection was at least as extensive as that of Mr. Bilderback, who designed the project. Accordingly, the Government's criticism of PHL's site inspection is valid only if PHL didn't see or ignored obvious manifestations of rock. The Government relies on 25 photographs, taken on July 20, 1970, of which only 17 are pertinent 31 to support its contention that the existence of rock was obvious. These pictures were taken after the project was completed and after the claims were filed. The photos purport to show rock outcrops, boulders and rock ledges at varying and in some instances unspecified distances to the right or left of the completed roadway. The difference in terminology is significant. Although it is not entirely clear, the

31 Exhibit 46. The first two involve rock in areas where the Government concedes it did not anticipate rock (note 6, supra), and the last six involve areas from station 203+90 to 219+00, middle section, where PHL does not claim it encountered unanticipated rock (note 27, supra).

"rock outcrops" in photos four, five, six and 18, appear, in fact, to be loose boulders. Mr. McReary testified that in his experience boulders on the surface were out of place, having been transported by glacial action or otherwise, and were not necessarily an indication of material beneath the surface (Tr. 400).

Other photos, i.e., seven, eight, ten and 13, depicting what are labeled boulders or rock could show loose surface rocks. Photo nine is asserted to depict "boulders in gully" (Brief, p. 9). Being beneath the road surface, this is not necessarily an indication of rock in the roadway. There is, of course, no doubt that most of the remaining photos accurately depict rock outcrops. However, we cannot overlook the fact that what is obvious as a matter of hindsight may not have been so as a matter of foresight. In addition, Mr. Powell spent considerable time relocating the eastern portion of the middle section of the roadway for the express purpose of avoiding rock.2 Lastly, we think there is considerable merit in PHL's assertion that notwithstanding the Bureau's present contentions, it, in fact, viewed this project in much the same manner as did PHL. We conclude that PHL's site investigation was reasonable 33 and that the Government's contentions to the

32 Tr. 686-688. He considered that he had done "a pretty good job." (Tr. 688.)

33 In reaching this conclusion, we are influenced by the Government's failure to disclose the soils report. See Maryland Painting Company, Eng. BCA, No. 3337 (August 17, 1973), 73-2 BCA par. 10, 223.

contrary have not been sustained.34

Having found that PHL's site investigation was at least as extensive as that of the Bureau's engineer who designed the project and reasonable under the circumstances, the assertion that that PHL was not harmed 35 by the failure to disclose the soils report may be disposed of rather quickly. We, of course, recognize that there can be no contractual liability for the failure to disclose what is obvious and that soil borings and soil data may not accurately disclose area soil conditions.36 However, inherent in our determination that PHL's site investigation was reasonable is the conclusion that the existence of rock was not obvious in the areas where PHL claims it encountered unanticipated rock and it is settled that PHL was entitled to full disclosure.37 This finding necessarily disposes of the Government's contention that any detriment suffered by PHL by the encountering of rock in the western section is offset by the fact common material was encountered in the middle section in areas where rock should have been anticipated.

To support its contention that

34 The Government suggests that PHL was remiss for failing to probe the test holes with appropriate tools (Brief, p. 8). We have rejected similar contentions in the past. Harris Paving and Construction Company, IBCA 4873-65 (July 31, 1967), 74 I.D. 218, 67-2 BCA par. 6468, and reject them here.

35 Mr. Lyshaug testified that had PHL been aware of the soils report its estimate of costs would certainly have changed and that it was doubtful if they would have bid since their equipment was not suitable for such extensive drilling and shooting (Tr. 216).

36 Maurice Mandel v. United States, 424 F.2d 1252 (8th Cir., 1970).

ST Ragonese v. United States, 128 Ct. Cl. 156 (1954); Leal v. United States, 149 Ct. Cl. 451

38

conditions encountered were substantially as expected, the Government points to the close correlation between total estimated excavation of 202,100 cubic yards and asserted actual excavation, including borrow, of 219,403.0 cubic yards. While the asserted actual quantities are pay quantities and would presumably be accurate or reasonably so, it is clear that these "actual" quantities do not include the contractor's claim for additional excavation which was settled by the Government's agreement to pay for 20,000 additional cubic yards (Tr. 40). In addition, the contract required that pay quantities be determined by the average end-area method, the material being measured in its original position (Article 102-4.1 of FP-61; Article 9.1, p. 23, of the General Requirements). While the extent to which pay quantities were actually determined by such measurements is not clear, it is obvious that such measurements bear no relationship to the kind of material excavated (Tr. 60). Related to the question of whether this project turned out as planned is the question of whether this was a balanced job. PHL asserts that contrary to its expectation, not one

(1960); Anderson & Guerrero, ASBCA No. 17041 (November 29, 1972), 73-I BCA par. 9802. Cf. Flippin Materials Company et al. v. United States, 160 Ct. Cl. 357 (1960).

38 Tr. 580; Findings, pp. 49, 50; Brief, p. 17. Mr. Bilderback testified that the increase of 8.6 percent of excavation over that planned "*** is a very, very good result in this kind of a tough, mountain, rock job. I think it could be twice that and still be considered very good." (Tr. 579.)

3 Payment was made on the basis of remeasurements and on the basis of an agreed yardage with the contractor (Tr. 547, 627).

cut actually balanced (Tr. 227-229; 316; Reply Brief, p. 15). PHL attributes this to the fact that the project was designed for dirt while rock was actually encountered. PHL relies upon the shortage of finishing material, discussed infra, and upon the fact that it was necessary to supply substantial quantities of borrow even though no borrow sources or estimated quantities of borrow were shown on the plans.40 Some 21 borrow pits, several of which are listed as unauthorized, from which an estimated quantity of 5,525.3 cubic yards of material was excavated, were apparently utilized through October 3, 1968. (Findings, Table VI.) Mr. McReary testified that there were a total of 23 or 24 borrow sources (Tr. 34). Since the record indicates that PHL obtained or attempted to obtain borrow from several sources not listed in Table VI of the Findings (Project Diary of September 29, 1968), there is a question as to the accuracy of this total. Table V (Findings, p. 50) indicates total borrow of 26,631.4 yards amounting to 13.4 percent of design yardage. Since the contract provided that borrow would be considered for payment as unclassified excavation, the amount of material upon which overhaul was paid would appear more significant than the quantity of borrow or number of borrow sources. However, despite the fact that a purpose of a mass diagram is to depict the movement of mate

40 Mr. Erickson testified that the Bureau expected to pay for borrow as excavation, but conceded that "We didn't expect to have to overhaul in order to get borrow." (Tr. 712.)

rial for pay purposes (Tr. 629), the record does not reflect the total quantity upon which overhaul was paid under Change Order No. 2.11

Mr. Bilderback acknowledged that none of the cuts on the project actually balanced. He testified "I think that some of the balances on the job were quite close." (Tr. 587.) He stated that balances in the eastern section were generally long, that is had excess material, that balances in the middle section were generally short and admitted that the western section was not comparable because of the redesign (Tr. 587, 588). He was, nevertheless, of the opinion that the project balanced quite well. It is, of course, hardly surprising that the author of a design will defend its validity. In addition, Mr. Bilderback's testimony is based upon the mass diagram which was compiled at the time the findings were prepared (Tr. 629), has the deficiencies hereinafter noted, and understates actual excavation by 20,000 cubic yards. As we find infra, the project was cross-sectioned after completion only in the eastern section. Mr. McReary testified without contradiction that there were forced balances utilized in compiling the mass diagram and that it was impossible to construct a mass diagram. to reveal where the balance points are without knowing the value of the cuts as built and the volume of

41 The mass diagram reflects overhaul of 3,296 cubic yards in the west end and a small amount in the extreme east end. Overhaul on borrow from the pit at station 174, middle section, is not shown as such. Estimated overhaul totaled 5,750 yards (Justification for Change Order No. 2, App's Exh. 12).

the embankment (Tr. 37, 38). We find that not one balance area actually balanced 42 and that there were significant and substantial variances between the design and actual balance quantities.

The other half of the Government's contention that conditions encountered were substantially as expected is the assertion that PHL did not encounter as much rock as it claims. The Government asserts that it expected that some rock would be encountered in 85.8 percent of the excavation (par. 81, Findings of Fact). A table (Table II, p. 43, of the Findings) compares percentages of rock allegedly anticipated in the design with the amount of rock 43 actually encountered in the areas where PHL claims unanticipated rock (note 27, supra) and purports to demonstrate that PHL actually encountered 9,000 cubic yards less rock in these areas than anticipated in the design. Aside from the com

See also Article 4.2 "Change in Drawing and Specifications-Adjustments in Quantities of the General Requirements, which provides, inter alia, "*** * that it is inherent in the nature of the construction work to be performed under this contract that minor changes in the plans and specifications may be necessary during the course of construction to adjust them to field conditions ***." In addition, see Article 105-1.1 of the Special Provision providing in part that "End-hauling of excavation material from one balance seetion into another will be limited to 1,000 feet." 43 Rock for this purpose is defined as material which was drilled and blasted or which in Mr. Bilderback's opinion required drilling and blasting (Tr. 645).

paction factors as calculated from the plans there is no documentary evidence, dated prior to the invitation, to support the percentages of rock the Government now claims to have anticipated. The percentages of anticipated rock shown in Table II are based on a schedule, "Design Compaction Factors and Anticipated Excavation" (Exh. 38), which was compiled at the time the findings were prepared from Mr. Bilderback's memory of how he designed the project (Tr. 617, 618). Mr. Bilderback acknowledged that he made no field notes at the time of his site visit and testified that the percentages of anticipated rock were carried back to the office in his head."

The findings (par. 80) state that compaction factors used in the design were based on material expected to be encountered. A compaction factor of minus zero to minus ten percent was allegedly for predominantly rock excavation, minus 20 percent was for heterogenous excavation of rock and dirt and minus 30 percent was allegedly for predominantly dirt excavation (par. 78, Findings).

Table II shows a compaction factor ranging for a minus 29.8 percent to minus 30.1 percent in the area between 0+00 and 42+63, western section and admits that the Government did not anticipate rock in this area. In the area from 6+53 to 17+92, middle section, the com

44 Tr. 618, 641. With respect to this testimony, appellant's counsel makes the observation that it "strains credulity" (Reply Brief, p. 6).

525-599-73- -3

paction factor calculated from the plans is a minus 19.3 percent and rock allegedly anticipated in the design was 63 percent. In the area from 24+90 to 35+85 middle section, the calculated compaction factor is a minus 16.9 percent and rock allegedly anticipated in the design is 75 percent. Calculated compaction factors in the area between 35 +85 to 75+84, middle section, range between minus 15.5 percent and minus 21.6 percent and the rock allegedly anticipated in the design is shown as 50 percent. Between stations 128+68 to 197+51, middle section, compaction factors vary from a minus 10 percent to a minus 18.5 percent and rock allegedly anticipated in the design is uniformly shown as 90 percent.

The foregoing demonstrates that compaction factors as calculated from the plans, which vary only insignificantly from compaction factors assertedly utilized in the design, have little or no relation to the percentages of rock the Government now claims to have anticipated.

A second difficulty with Table II is the amount of rock actually encountered. The findings (par. 86) as well as Mr. Bilderback's testimony (Tr. 464, 465, 577, 668), would lead to the conclusion that the percentages of rock encountered are based upon on-the-spot observations as recorded in the daily log and project diaries. However, on crossexamination, Mr. Bilderback admitted that the specific percentages did not appear in the records and