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that these were his estimates. 45 PHL ernment and PHL records relating claims 62,991 cubic yards of rock in to drilling and shooting, appellant's the areas where unanticipated rock expert witness, Mr. McReary, estiwas encountered 46 whereas the cal- mated that drilled and shot rock culations in Table II indicate only and ripped rock, not drilled and 23,536 yards of rock in the claim shot, amounted to 175,000 cubic areas, including 2,040 cubic yards of yards (Tr. 375, 445). Mr. Lyshaug, rock in channel changes which were based on 2,039 total number of not specifically included in the claim drilling hours (App's Exh. 6), but are within the claim areas. The powder consumption totaling quantities of unanticipated rock 153,780 pounds and 15,642 caps exclaimed by PHL are also based on pended (App's Exh. 5), estimated
) estimates (Tr. 242, 328, 330).
that rock drilled and shot on the Quantum not being before us, we project exceeded 160,000 yards (Tr. need not resolve the controversy 242, 328-331). He testified that over the amount of rock encoun- hours spent drilling and shooting tered.47 Nevertheless, we will review were more than twice what he anbriefly the evidence in this regard ticipated. He also estimated that in order to bring into focus addi- because of its bouldery condition tional arguments of the Govern- they ripped 30,000 yards of rock ment that conditions encountered on which had been previously drilled the project were substantially as ex- and shot (Tr. 328, 329). Mr. Bilpected. Based on a review of Gov- derback estimated total rock excava
tion at approximately 100,000 cubic 45 Tr. 637, 667, 677. Our examination of the
yards. 48 project diaries and the daily log reveals the use of percentage of rock encountered in iso- Based upon swell of from 40 to 60 lated instances, e.g., Daily Log of September 9, 1968 and August 6, 1969. All of such per
percent for rock testified to by Mr. centages are based upon estimates and not McReary, the Government argues actual measurements. 48 App's Exh. 10. However, 3,287 cubic yards
that the amount of rock PHL alof rock allegedly encountered between station leges it encountered would extend 55+72 and 66+77 and 6,314 cubic yards of
the width of the embankment from rock allegedly encountered between station 66+77 and 75 +84 hare been marked out with the design width of 32 to 36 feet to a pencil. Mr. Lyshaug testified that this was because of a typing error (Tr. 194). Subtrac
56 to 71 feet and place the fills in tion of these amounts would reduce the the woods throughout 87 percent of claimed yardage to 53.390.
47 In Roscoe-Ajar Construction Company, Inc. and Knickerbocker Construction Corpora- 48 Tr. 465, 644, 645. This figure was based tion v. United States, 198 Ct. Cl. 133 (1972), on accepting PHL's statement that it antici. it was held to be error, in a case where quan- pated that 41 percent of total excavation tum was not before the Board, to deny a would be rock and adding thereto 23,536 yards changed condition claim upon the ground the of rock encountered in the areas where PAL alleged change was not shown to be material states it did not anticipate rock. Mr. Bilderwithout deciding whether a changed condition back's estimate excludes all overburden (Tr. had, in fact, been encountered. We have no 646-649), while PHL contends that as a prachesitancy in determining that the amount of tical matter, and in accordance with industry rock encountered by PHL was material. See practice, rock with a foot or two of overburden United Contractors v. United States, 177 Ct. must be treated as all rock (Tr. 53, 199, 200, Cl. 151 (1966).
October 23, 1973 the job (Tr. 551, 552; Brief pp. 13, of disposing of boulders resulted in 11). Mr. Bilderback characterized an irregular slope beyond the emthis result as "unthinkable.” (Tr. bankment line (Tr. 262–264). The 552.) He asserted that, in fact, ma- measurements which would deterterial went into the woods in pos- mine whether the road is wider than sibly two isolated spots. As we have the design width in the eastern secfound, the 40 to 60 percent range for tion are not in evidence. Mr. Bilderswell given by Mr. McReary was im- back testified that there was a six mediately after drilling and blast- percent difference between staked ing and the actual swell would re- and final cross-sections in the eastduce to between 15 and 40 percent ern portion and that since there was when the rock was moved and less rock in the western and middle placed in the fill (note 16, supra). portions of the road, he would exBased on some rough calculations pect the difference in those sections and the fact that the material will to be less than six percent (Tr. 547, subside and compact where traveled 596). by heavy equipment, Mr. Lyshaug As we find infra, the Governtestified that the additional material
ment's position that the road was could be accommodated in an addi- not built beyond the design width to tional foot or a foot and three quar- any significant degree is contrary ters of fill width.49
to the position taken by Mr. BilderAlthough Mr. Bilderback has back while the road was being concompiled a mass diagram (Exh. 44; structed. Photos of the completed, App's Exh. 2) purporting to show or nearly completed, road show subprecise quantities for excavation, stantial quantities of material borrow and waste, the completed wasted into the trees at stations 52, road was cross-sectioned only in the 73, 84, 103, 142 and 186, middle seceastern portion (Tr. 625; 630). Mr. tion and at stations 205 and 210 in McReary testified that without the eastern section (pp. 17, 23, 25, 28, cross-sectioning the mass diagram 30 and 31, App's Exh. 4). Other was only a matter of judgment or photos taken by the Government an educated guess at best (Tr. 35, prior to completion (Appeal Exh. 6 36, 46-48). He asserted that with
of Exh. A) for the purpose of rock "What is commonly done is demonstrating that material was that fills are built wider, and be
wasted clearly show extra width of cause they are not recross-sectioned,
the roadway or embankment. Mr. no one really knows what volume is
Bilderback acknowledged that the contained in that fill." (Tr. 52.) Mr.
road was wider than the design Lyshaug indicated that the necessity
width between stations 160 and 216, Tr. 736-740. The Government cites Mr. east, because of material that was Bilberback as testifying that the road ex
wasted (Tr. 553). It was also necesceeded design width in only two or three instances. His actual testimony was “Except for sary for appellant to excavate fill those two or three instances, no material went into the woods." (Tr. 553.)
sections in order to dispose of large
boulders (Tr. 141; photos, p. 9, would be more favorable than those App's Exh. 4). We find that the encountered has been set forth above road exceeded its design width to an and will be repeated here only to the undetermined but significant degree extent necessary to the decision. and that the Government has not
In James H. Clack v. United sustained its contention that it
States 51 and Pacific Alaska Conanticipated rock to the extent now
tractors, Inc. v. United States, note claimed.
50, supra, the Court rejected contenIn addition to the compaction fac- tions very similar to those here adtors as calculated from the plans, vanced by PHL. In Clack, the Court PHL relies upon the Government's held that notes on the contract estimate of one dollar for excava- plans, seemingly indistinguishable tion as compared to the contract in effect from the note on the plans price of $1.10 to support its asser- herein (note 42, supra), together tion that the Government, in fact, with the fact the project cross-secviewed this project in much the tions were not staked at the time of same manner as PHL. Government
bidding, also a fact here, should witnesses insisted that the one dol- have placed plaintiff on notice that lar estimate was reasonable (Tr. there would be some change in ex84, 495, 713). We conclude that this
cavation and embankment quanticontention has merit and is an ad- ties. The Court rejected plaintiff's ditional reason for finding that the contention that ach balance area Government did not anticipate as was to be considered separate from much rock as it now claims.
other balances and denied the claim
for a constructive change based DECISION
upon the contention plaintiff had to It is now settled that in consider
excavate more material and haul ing a category one "changed condi
it greater distances than contemtion" claim express representations plated. as to the conditions to be encoun
In Pacific Alaska Contractors, tered are not necessary and that the
Inc., supra, the Court characterized issue is whether “* * * There were
the intent of the Government agents such indications which induced rea
that the project would be a balanced sonable reliance by the successful one as merely "hopes, expectations, bidder that subsurface conditions guesses, or suggestions” and held would be more favorable than those that plaintiff was not warranted in encountered." 50 PHL's contention drawing any conclusions from the that the contract documents did con- rough estimates on the plans as to tain indications that conditions
the balanced nature of the job and
the underlying physical conditions. 50 Pacific Alaska
The Court emphasized the frequent States, 193 Ct. CI. 850-872 at 864 (1971). See also J. E. Robertson et al. v. United States, 194 Ct. Cl. 289 (1971).
51 184 Ct. Cl. 40 (1968).
October 23, 1973
reminders that estimated quantities nating substitute borrow sources were to be viewed with great cau- and ordering plaintiff to perform tion and said that the contract docu- borrow excavation and overhaul far ments were substantially silent in in excess of quantities shown on the this respect, which fact should have contract drawings constituted combeen recognized by the plaintiff. pensable changes, overturning a de
The rationale of the above deci- cision of this Board 53 to the effect sions would, at first blush, seem to be that compensation in excess of condispositive of the instant claim.
tract prices was precluded unless However, in
in Morrison-Knudsen the overrun was in excess of 25 perCompany, Inc. v. United States, 52 cent. the Court held, inter alia, that con- Morrison-Knudsen, supra, was tract drawings showing for various decided subsequent to Clack (note segments of the roadway "(1) ex- 51, supra), but Clack was not recavation in cubic yards; (2) borrow ferred to therein. In Pacific Alaska in cubic yards; (3) embankment in Contractors, Inc. (note 50, supra), cubic yards; (4) overhaul in station Morrison-Knudsen
distinyards; (5) borrow overhaul in 5
guished upon the ground that cubic-yard miles; (6) the specific 6* * * there were very material difborrow pit locations, * * *and (7) ferences in the usefulness of the the quantities of unsuitable excava- borrow pits as compared to the indition material that were to be
cations in the contract documents wasted” was information essential * * *.” 193 Ct. Cl. at 864. We conto the preparation and submission clude, however, that the Court's of a bid. The evidence showed that
broad statements negating the con65 percent of the designated borrow
tractor's right to rely on the accupits failed to produce suitable ma- racy of bid information must be terial as compared to a ten percent viewed with caution and that the failure rate which might normally controlling finding in Clack was be expected. The Court held that that the construction balance points plaintiff was justified in relying on did not differ to any great extent the relative accuracy of the borrow from the plan balances. Similarly, pit locations and other data shown
in Pacific Alaska Contractors, Inc., on the drawings, rejected a conten- the controlling finding was that the tion that a contract provision to the differences with respect to borrow effect that the Government assumed
pits between the contract indicano responsibility for the quantity of tions and actual conditions encounacceptable material at designated lo- tered were not substantial or significations placed the entire risk of the
cant. suitability of the borrow sources The record in this case reflects on the contractor and ruled that actions of the Government in desig
63 Morrison-Knudsen Company, Inc., IBCA 36 and IBCA 50, 64 I.D. 185 (1957), 57-1 BCA
par. 1264, affirmed on reconsideration, 66 I.D. 52 184 Ct. Cl. 661 (1968).
71 (1959), 59-1 BCA par. 2110.
that the contractor should have quired that the top four inches of been able to rely upon the fact that roadway be completed with matethe excavation and embankment rial which would pass a three inch quantities shown within the bal- screen. While the size of material ance points on the plans would be a permitted immediately below the rough approximation of the quanti- top four inches is not clear, we note ties encountered in actual construc- that the top 12 inches of subgrade tion and that the differences be- were required to be rolled. It also tween these quantities, called "com- provided that coarse rock and paction factors,” were based on boulders were to be used in the formaterials expected to be encoun- mation of embankments and that tered. Indeed, as in Morrison- where feasible such material was to Knudsen, supra, we do not believe be placed in lower sections thereby an intelligent bid could have been conserving the more suitable matesubmitted on this solicitation with- rial for the top portions of the subout balance point information. grade. The contractor clearly had
The remaining question is an obligation to conserve material whether conditions actually encoun- deemed suitable by the engineer for tered differed materially and sub- finishing or placing in the roadbed. stantially from those indicated. We The record indicates that PHL have found that there were signifi- representatives were told by the cant and substantial variations be- project inspector on several occatween the design and actual balance sions that “finishing dirt” was being area quantities and that the road ex- placed on the bottom of the fills and ceeded its design width to a sub- was not being saved (Project Diary stantial but undetermined degree of July 12, 15 and 18, 1968). On one because of rock. We, therefore, find such occasion, the project inspector that the unanticipated rock encoun- was informed that PHL personnel tered by appellant and the lack of were saving finishing material but borrow or suitable materials in situ they had been stopped by Mr. Lyconstituted a changed condition. shaug. 54 There is no evidence of the
amount of materials involved in Grading Changes
these requests. This claim is based upon the lack
Mr. Propes inquired of Mr. Bilof suitable finishing materials in the derback where they were going to middle and eastern section of the obtain 3,500 yards of material necesjob and upon the changes in the sary to finish the fill from 261+00 contractor's method of operation made necessary by the Govern
64 Project Diary of July 18, 1968. Mr.
Lyshang testified that he did so because they ment's refusal to designate borrow were removing a shallow layer of basically
organic material from uneven rock and that sources when this condition was
operating under such conditions tore the equip. called to its attention.
ment apart (Tr. 257, 258). He asserted that organic
suitable The contract, as we have seen, re