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such roads had to be constructed to firm's bid for this project and that the standard of a contract road, if he personally made a site inspection newly constructed (Tr. 65). How- (Tr. 98). He stated that the condiever, there are instances when roads tion of the access roads, as shown which cross the line right-of-way in the plans and specifications, was are designated as pay roads (Tr. 65, below the standards required to per66, 131, 132; App's. Exh. B). Mr. form the line work on this size of Wagenhoffer testified that these a line. When asked how be expected were rare occasions and had been
that his firm would be compensated primarily on Forest Service Roads for bringing those roads up to the which crossed the line right-of-way specification, he replied: "The unit two or three times during the length price is [sic] quoted as $108 a staof the line. He conceded that there tion would be the lineal feet of road was nothing in the specifications required to be improved, and which would enable a contractor to brought to the drawings [sic] and ascertain that any such road would standards as shown in the contract be improved for pay (Tr. 66). documents.” (Tr. 98.) He asserted
The claim does not include any that the unit price as quoted, as was roads on the line right-of-way (Tr. true for each of the unit prices in 82, 83). Roads on the line right-of- the bid, included the cost of men and way are not shown on the drawings. equipment, field and office overhead Roads improved by Power City for and a reasonable profit (Tr. 99). which claim is made are those roads Although he admitted to anticipatPower City considered necessary to ing that there would be substantiimprove in order to move materials ally more roads to be improved than and equipment to the site (Tr. 124, shown in the bid estimate, he made 125). Roads to the standard of the no inquiry of Bonneville as to the specifications were adequate for this estimated quantities. He gave as a purpose (Tr. 94). Mr. Petterson and reason the fact that "It's not unMr. Wagenhoffer conceded that the usual for estimated (actual] quanaccess road system as reflected in tities to vary substantially from the drawings was necessary for the that shown in the contract docuperformance of the contract (Tr. ments.” (Tr. 100.) 25, 56).
Affidavits (App's. Exh. D & E) The third low bidder on this submitted by the second and fourth project was Pettijohn Engineering low bidders, Wire Installation ConCo., Inc. (Tr. 97; App's. Exh. A). tractors, Inc., and R. C. Hughes Pettijohn's bid price for road im- Corp., respectively, are to the effect provement was $108 per station. Mr. that these bidders interpreted the E. I. Pettijohn, who had been en- invitation in essentially the same gaged in heavy power line construc- manner as did appellant and that tion since 1938, testified that he was they expected to be paid at the conactive in the preparation of his tract unit price for all stations of
November 27, 1973
contract access road improved in rights-of-way acquired by the Govorder to allow material and equip- ernment 11 upon approval of locament to be moved to the site. tion and type by the contracting offi
cer. Paragraph D of this section Decision
provides in part that the contractor For reasons hereinafter stated, we
shall be solely responsible for use conclude that appellant's interpre
and occupancy of any private lands tation of the invitation must be held crossed by him in securing such adto be reasonable and that the only ditional access from public roads real question is whether appellant's and from Government-acquired acfailure to raise the matter of the
cess roads as he finds necessary for validity of the estimated quantities
his operations. This section makes with Bonneville operates to deny
it reasonable to conclude that genthe claim.
erally the additional access roads Section 2-115 entitled "Quanti
which the contractor may construct ties and Unit Prices" provides that
at his own expense are those on the the total estimated quantities neces
line right-of-way. Existing roads
are not considered "undeveloped" sary to complete the work as specified are listed in the “Schedule of even if unimproved.12 If the conDesignations and Bid Prices.” The tractor requires access roads or contractor is required to furnish and rights-of-way in addition to those place the entire quantity necessary
shown on the drawings, it is the conto complete the work as specified,
tractor's responsibility to construct whether it is more or less than the
or obtain them.
Contract access roads are defined estimated quantities. Under this
in Part V, Chapter 1, Section 5–102 provision it is reasonable to conclude that quantities necessary to
of the specifications as “access roads complete the work are measurable required to be constructed or imby some objective standard set forth proved by the specification or by in the contract.
supplemental orders from the con
tracting officer ***.” This section Access to the right-of-way was to be from intersecting or adjacent
further provides that the contractor
shall construct or improve access public roads and any access roads
roads in locations specified by the and access road rights-of-way for which rights have been acquired by
drawings, by the specifications, and
by the contracting officer. As we the Government (Section 3-103 entitled "Accessibility of Site").
have seen, it is undisputed that
neither the drawings nor the specifiParagraph B of this section provides that the contractor may at his 11 Mr. Wagenhoffer testified that undeveloped expense construct additional roads
structed (Tr. 52). He indicated, however, that and other means of access within
access roads shown on the drawings would be the boundaries of the line right-of
developed even if unimproved.
12 Note 11, 811 pra. Existing access roads had way and on undeveloped access road been constructed some 20 years ago (Tr. 27).
to him meant a road that had not been constations of the same access road with the reading Section 5–102 in conjunc
cations designated any particular distinction between “contract” and sections of access road for improve- "non-contract” access roads was rement. Under Section 5-111 payment lated to whether payment would be was to be authorized only for that made for their improvement as well access road work required by the as their location on or off the rightspecifications, drawings, and the of-way. Access roads shown on the contracting officer.
drawings were all off of the rightNon-contract access roads are de- of-way and another way of phrasfined as those roads on the line ing the foregoing would be that the right-of-way constructed for the contractor could expect to be paid contractor's convenience (Section at the contract unit price for all 5–201). All costs of contracting and Government-acquired roads shown improving these roads were to be on the drawings which were imborne by the contractor. Non-con- proved to the standards of Section tract access roads are divided into
5–104, providing their improvement two types: permanent and tempo- was necessary for the primary work rary. Permanent access roads are which was construction of the line. those that provide access to tower The Government argues that bidor structure sites and are to be con- ders were essentially told that Bonstructed or improved to the same neville would pay for 40,000 feet of standard as contract access roads. road improvement and that “* * * Temporary access roads (Section bidders should expect to be paid for 5–203) are those that provide access only the quantity of roads specified to landings and yarding areas and by the Contracting Officer with a which are not to be incorporated possibility of some overrun or into the Government's permanent underrun." (Post-Hearing Brief, access system. Temporary access pp. 1, 2.) The problem with this roads were to be destroyed upon position is that whether there was completion of the work and the land an overrun or underrún was not asrestored to its original cross section. certainable by any standard set
Bearing in mind the requirement forth in the contract.13 The contractof Section 2-115 that the contractor ing officer's finding that the Govwould be required to complete the ernment had determined that its work specified whether more or less needs were for the improvement of than the estimated quantities and 40,000 feet of access roads and the Section 3–103.B providing that the assertion (Post-Hearing Brief, p. “contractor may at his expense con
13 Appellant points out and the record estabstruct additional roads and other
Iishes that Bonneville's Interpretation allowed means of access within the bounda- it to pick and choose between access roads to
be improved for pay and, indeed, between ries of the line right-of-way” and
result that portions of an access road were
flagged for improvement for pay while portions tion with Section 5-201 et seq., we of the same road in equally poor condition think that a bidder or contractor were not so flagged. Appellant asserts that it
is unreasonable to expect a bidder to antici. could reasonably conclude that the
pate such a result.
November 27, 1973 2) that this need was based on ac. poses. If access roads to these standcess by nothing larger than a 4 x 4 ards were insufficient for access by truck can avail the Government appellant's equipment or if access nothing since this standard was not roads in addition to those shown on set forth in the invitation and re- the drawings were required, we sulting contract.14
think it clear that it was appellant's The Government also argues that responsibility to provide them. the contract cannot reasonably be We turn to the Government's read as containing any warranty ex- most serious contention, i.e., that the press or implied, that the access road pre-bid site investigation should system would be suitable for the have alerted appellant to the fact contractor's construction require that under its interpretation of the ments and that the contractor would invitation there was a substanbe paid for making the road suit- tial under-estimate of the quantiable. We can agree with this con- ties of road improvement and of tention and the authority cited by the need to inquire of Bonneville as the Government 15 without altering to what was intended in this regard. the result since we find the argu- Representatives of the bidders who ment inapposite. Appellant's con- testified, Mr. DeFeyter of appellant tention is not that there was and Mr. Pettijohn of Pettijohn warranty of access but that it rea- Engineering Co., Inc., readily adsonably concluded that exist- mitted that they considered Bonneing [Government-acquired] access ville's estimate of the quantity of roads either were or would be
road improvement would be exbrought to the standards of Section ceeded. However, they defended 5–104. The record is clear that roads their failure to bring this matter to to the standards of the specifications the attention of Bonneville upon the were adequate for appellant's pur- ground that under the terms of the
invitation their concern was to de14 See Ets-Hokin Corp. v. United States, 190 Ct. C1. 668 (1970); Firestone Tire & Rubber velop a reasonably accurate unit Co. v. United States, 195 Ct. Cl. 21 (1971). See
price for road improvement and on Erhardt
Andersen, (December 1, 1961), 68 I.D. 201, 61-2 BCA the further ground that it was not
unusual for there to be substantial 16 Premier Electrical Construction Company v. United States, 473 F.2d 1372 (7th Cir.
variances between estimated and ac1973). In the cited case the contract provided
tual quantities. Assuming the validthat access to the work site would be provided through designated state and county roads. In
ity of this latter assertion, the quesrejecting the contractor's claim for extra costs
tion presented is whether a bidder incurred when a spring thaw made one of the designated roads Impassable, the Court ruled on notice of a potential substantial that the language used was merely descriptive
overrun in estimated quantities is on of available access roads and that a fair read. ing of the contract made it evident that the notice of an error in specifications Government had not assumed the obligation of correcting the situation which developed.
and is required to bring this situaThe Court was careful to note that there was tion to the attention of the Governno inadequate disclosure of facts known to the Government and unknown to the plaintir.
It appears to be settled law that, less, under the circumstances presin the absence of language requiring ent here, we decline to apply the a bidder to make its own determina- rule for the reason that the time the tion of quantities, a contractor is invitation was issued the Governgenerally entitled to rely on the ment had in its possession material reasonable accuracy of Government information, i.e., the list of access estimates. 16 This being true no rea- road improvement for pay, which it son is apparent why a prospective failed to disclose. 19 When the Govbidder on notice of a substantial ernment enters into a contract, as overrun should not be expected to part of its implied duty to help seek clarification or risk having the rather than hinder performance, it interpretation of the contract re- is obligated to provide the contracsolved against him.17 Application of tor with special knowledge in its this rule here would require denial possession which might aid the conof the claim for, although we have tractor in performing.20 The courts found appellant's interpretation of and the Boards have taken an inthe invitation reasonable, a site in- creasingly stringent attitude toward vestigation in conjunction with the the withholding of information the estimated amount of road improve- disclosure of which would be likely ment makes it equally reasonable to
to have a material effect on a conconclude that appellant was on no
tractor's estimate of costs.21 We, tice of a possible error in specifica- therefore, hold that any possible tions and it is evident that appel- duty of appellant to make inquiry lant's assumption that access roads has been nullified by Bonneville's shown on the drawings either were
failure to disclose the access road or would be brought to the stand- improvement list which according ards of the specifications was favorable to the contractor.18 Neverthe- 19 See, e.g., G. W. Galloway Company, ASBCA
Nos. 16656 and 16975 (September 19, 1973),
Slip Opinion at 55 : "None of the foregoing 16 See Norfolk Dredging Company v. United important Information was disclosed to appelStates, 175 Ct. Cl. 594 (1966) (upholding a lant prior to bid opening, but under the rulings Board decision to the effect that a substantial in Boland (ASBCA No. 13664 (October 28, underrun from estimated quantity constituted 1970), 70-2 BCA par. 8556), Helene Curtis, a changed condition); Barringer and Botke, (160 Ct. CI. 437 (1963)] and Bateson IBCA-428-3-64 (March 23, 1966), 66–1 BCA Stolte, (145 Ct. Cl. 387 (1959)] It should have par. 5458 (contractor entitled to rely on esti- been. Failure to do so imposes liability on the mates where error was not discoverable upon a Government for the excess costs incurred by reasonable site investigation or from examina- appellant on account of the defective tools. tion of Government drawings.) Cf. Kreider The "as is"' disclaimer of warranty is not a Bro8., IBCA-545–2–66 (April 5, 1967), 67-1 defense
circumstances BCA par. 6260 (overruns and underruns from appeal."
themselves constitute 29 See Aeroder, Inc. v. United States, 189 changed conditions).
Ct. Cl. 341 (1969). 17 Beacon Construction Co. v. United States, 21 Hardeman-Monier-Hutcherson United 161 Ct. Cl. 1 (1963). Cf. Mountain Home Con- States, 198 Ct. Cl. 472 (1972); Maryland tractors v. United States, 192 Ct. Cl. 16 (1970). Painting Company, Eng. BCA No. 3337 (Au
estimates do not in
gust 17, 1973), 73-2 BCA par. 10,223 ; F. F. "This tendency on the part of contractors to Slocomb Corporation, ASBCA No. 16715 (Auassume too much is rather widespread.” MC- gust 20, 1973), 73–2 BCA par. 10,209: Elrich Bride & Wachtel, Government Contracts, Sec. Construction Co., Inc., GSBCA No. 3657 (Aution 2.170 at 2-360.
gust 10, 1973), 73-2 BCA par. 10,187.
18 It has been stated that: