a contract for the construction of a power line was determined to be reasonable and, based upon a site investigation, the contractor had reason to suspect that the Government's estimate of the amount of access road was substantially understated, but the Government withheld the specific list of access roads which prior to the issuance of the invitation it had determined were necessary for its needs and for which payment would be made, the Board holds that the Government's failure to disclose material information in its possession prior to bid overcame the consequences normally attributable to a bidder who fails to make inquiry concerning an apparent conflict between the estimated quantity and the results of the site investigation.

APPEARANCES: Mr. Robert W. Winston, Jr., Attorney at Law, Winston, Cashatt, Repsold, McNichols, Connelly & Driscoll, Spokane, Washington, for appellant; Mr. David E. Lofgren, Jr., Department Counsel, Portland, Oregon,

for the Government.

OPINION BY MR. NISSEN

INTERIOR BOARD OF
CONTRACT APPEALS

Under a contract for the construction of a power line, appellant seeks compensation at the contract unit price for the improvement of additional access roads beyond those designated for improvement by the Government.

Group A, Access Roads

1. Improve existing access roads___ 2. 12-inch culvert, furnish and place... 3. 18-inch culvert, furnish and place... 4. 24-inch culvert, furnish and place... 5. 36-inch culvert, furnish and place... 6. 48-inch culvert, furnish and place... 7. 3-inch minus gravel, furnish and place

1 Appeal file, Item No. 1.

Findings of Fact

The contract, awarded on September 2, 1970, is in the estimated amount of $1,219,815 and calls for the construction of the BandonGold Beach 230/115 KV Line No. 2 in Coos and Curry Counties, Oregon. The line is approximately 52 miles long. For most of its length, the line parallels the existing Bandon-Port Orford and Port Orford-Gold Beach 115 KV Lines. Prospective bidders were advised that clearing of right-of-way and construction of designated access roads was being performed under a separate contract under which completion might be extended until approximately April 1, 1971, and that certain tracts of the right-ofway would not be available until specified dates. The contract included Standard Form 23-A (June 1964 Edition) with revisions not pertinent here.

Resolution of the controversy involves the interpretation of contract provisions. The various items of work in the invitation were divided into two groups: Group A, Access Roads and Group B, Line Construction. The former group is described in part as follows:

The specifications provide in pertinent part:

"1-102. Work to Be Done By the Contractor. A. Access Roads and Appurtenant Items. 1. Improve approximately 40,000 feet of existing access roads.

"2. Furnish and place gravel, crushed aggregate, culverts, wire gates and fences. Place pipe frame and metal panel gates."

Pertinent to this controversy is the following section of the Supplementary General Provisions:

"2.115. Quantities and Unit Prices. A. The total estimated quantities necessary to complete the work as specified are listed in the 'Schedule of Designations and Bid Prices', attached to and made a part of these specifications.

"B. These quantities are estimates only and will be used as a basis for canvassing and evaluation [sic] bids and for estimating the consideration of the contract. The Contractor will be required to furnish and place the entire quantities necessary to complete the work specified, be they more or less than the estimated quantities.

"C. If the actual quantity of any bid item varies from the estimated quantity by more than 25 percent, the Contracting Officer and the Contractor, at the request of either, will negotiate for a revised unit price to be applied to the units of work actually performed in excess of 125 percent or less than 75 percent of the estimated quantity; provided, that no such negotiation shall be undertaken unless the variation

from the original contract amount for any bid item exceed [sic] $4,000, based on the contract unit price."

Part III-General Technical Provisions-provides in part:

3–103. Accessibility of Site. A. Access to the right-of-way for transmission line construction and clearing will be from (1) intersecting or adjacent public roads and (2) any access roads and access road rights-of-way for which rights have been acquired by the Government. Roads existing on the right-of-way will be available to the contractor.

B. The contractor may at his expense construct additional roads and other means of access within the boundaries of the line right-of-way and on undeveloped access road rights-of-way acquired by the Government upon approval of location and type by the contracting officer. Roads shall be constructed in a manner which will not undermine any proposed or existing tower footings. In addition to performing current maintenance, the contractor shall take measures satisfactory to the contracting officer to prevent the occurrence of excessive erosion after use of these roads. Such measures as dips or culverts may be required by the contracting officer. All debris. resulting from such work shall be removed and disposed of by the

contractor.

C. The contractor shall maintain all roads used by him and upon completion of the job shall leave them in as good a condition as when first used by him. A road grading machine-not a bulldozer-shall be

used for maintenance and final grading. In no event shall the contractor interfere with the property owner's use of roads existing prior to the contractor's entry.

D. The contractor shall be solely responsible for securing the use of privately owned roads other than described in Paragraph A, above. The contractor shall also be solely responsible for use and occupancy of any private lands crossed by him in securing such additional access from public roads and Governmentacquired access roads as he finds necessary for his operations.

3-104. Availability of Right-OfWay. A. The term "right-of-way" includes substation, microwave station, radio station and building sites and access road and transmission line right-of-way which are provided by the Government. The term "other rights" includes those additional land rights which the Government considers necessary for performance of work under the contract.

B. The Government will make every reasonable effort to secure and make available right-of-way and other rights in advance of operations in sections of such size that the date of completion may be met.

C. The Government makes no representation that the right-of-way and other rights which it provides will include all rights which the contractor may find desirable. Any rights desired by the contractor in addition to those furnished by the

Standard Specifications For Contract Access Roads

March 6, 1970

5-102. GENERAL. A. Access roads required to be constructed or improved by the specifications or by supplemental orders from the contracting officer are designated as contract roads.

B. The contractor shall construct or improve access roads in locations specified by the drawings, by the specifications, and by the contracting officer.

C. The widths of the new roadbeds shall be no less than those specified in the drawings. The maximum grades shall be no greater than those shown on the drawings. Curves shall be widened to permit the hauling of either tower steel in 40-foot lengths or wood poles in 90-foot lengths, depending upon the design of the transmission line.

D. The minimum radius of curvature shall be 60 feet unless otherwise specified.

E. The number and location of turnouts and drainage structures will be determined in the field by the contracting officer.

F. Roads shall be constructed in manner which will not undermine any proposed or existing buildings, structures or transmission facilities.

G. Upon completion of the contract, all roads constructed or improved by the contractor shall be left in the condition they were at the time of their acceptance for partial payment.

OF

5-104. IMPROVEMENT EXISTING ACCESS ROADS. A. General. The manner of performing work and the operations required for improving existing roads and turnouts shall in general be as specified in the provisions for the construction of new roads except as provided below.

B. Clearing and Grubbing. Clearing, grubbing, and disposal of waste material shall be in accordance with Section 5-103, Paragraphs A and B, except that the widths shall be no less than the widths of the roadbed plus ditches as specified in Paragraph C. below.

C. Roadway. The roadway shall be improved to conform generally to the line and grade of the road as originally constructed and to its original cross section or to the cross section shown on the drawing for new access roads, whichever is greater. All existing ditches shall be cleaned and new ditches shall be constructed where required.

D. Turnouts. If widening of the roadbed at a turnout is required by the preceding paragraph, the width the width added to the roadbed. of the turnout may be reduced by

5-106. WATER BARS. Water bars shall be constructed as shown on the drawing after the roadbed has been completed. Roadside ditches shall be modified to drain. into the water bars. Surfaces shall be carefully shaped and compacted.

5-111. PAYMENT. A. General. Payment will be authorized only for

that access road work required by the specifications, drawing, and the contracting officer. Payment for construction or improvement of a station of access road will be made at the unit contract price only after all designations of work in that station have been completed and accepted.

C. Improvement of Access Roads and Turnouts. Payment will be made at the unit contract price and shall be full compensation for all costs involved in clearing and grubbing; all excavation; preparing and completing roadbed and shoulders; constructing water bars, ditches, and approaches; and finishing the roadway and slopes. The stations of improvement of existing access roads to be paid for shall be the number of stations of roadway ordered to be improved, measured along the center line thereof, finished according to these specifications and accepted. A station of improved access road shall consist of 100 linear feet. No measurement and no separate payment will be made for improvement of turnouts.

Chapter 2

Standard Specification for NonContract Access Roads

February 6, 1969

5-201. GENERAL. A. The contractor may construct and improve access roads on the line right-ofway for his convenience. The classes of roads which may be constructed

5-202. PERMANENT ACCESS ROADS. A. Roads that provide access to tower or structure sites are designated as permanent access roads. This class of road shall be constructed and improved to the same standard as specified for contract access roads.

B. Culverts, gravel, crushed aggregate, and riprap, if required by the contracting officer, shall be furnished and placed in accordance with the preceding chapter.

5-203. TEMPORARY ACCESS ROADS. A. Roads that provide access to such places as landings and yarding areas and which are not to be incorporated in the Government's permanent access road system are designated as temporary access roads. This class of road shall be constructed so that erosion will be. kept to a minimum, that any proposed or existing buildings, structures, or transmission facilities will not be undermined or unduly strained, and that domestic water supplies will not be contaminated. Adequate drainage and other meas

or