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such roads had to be constructed to the standard of a contract road, if newly constructed (Tr. 65). However, there are instances when roads which cross the line right-of-way are designated as pay roads (Tr. 65, 66, 131, 132; App's. Exh. B). Mr. Wagenhoffer testified that these were rare occasions and had been primarily on Forest Service Roads which crossed the line right-of-way two or three times during the length of the line. He conceded that there was nothing in the specifications which would enable a contractor to ascertain that any such road would be improved for pay (Tr. 66).

The claim does not include any roads on the line right-of-way (Tr. 82, 83). Roads on the line right-ofway are not shown on the drawings. Roads improved by Power City for which claim is made are those roads Power City considered necessary to improve in order to move materials and equipment to the site (Tr. 124, 125). Roads to the standard of the specifications were adequate for this purpose (Tr. 94). Mr. Petterson and Mr. Wagenhoffer conceded that the access road system as reflected in the drawings was necessary for the performance of the contract (Tr. 25.56).

The third low bidder on this project was Pettijohn Engineering Co., Inc. (Tr. 97; App's. Exh. A). Pettijohn's bid price for road improvement was $108 per station. Mr. E. I. Pettijohn, who had been engaged in heavy power line construction since 1938, testified that he was active in the preparation of his

firm's bid for this project and that he personally made a site inspection (Tr. 98). He stated that the condition of the access roads, as shown in the plans and specifications, was below the standards required to perform the line work on this size of a line. When asked how be expected that his firm would be compensated for bringing those roads up to the specification, he replied: "The unit price is [sic] quoted as $108 a station would be the lineal feet of road required to be improved, and brought to the drawings [sic] and standards as shown in the contract documents." (Tr. 98.) He asserted that the unit price as quoted, as was true for each of the unit prices in the bid, included the cost of men and equipment, field and office overhead and a reasonable profit (Tr. 99). Although he admitted to anticipating that there would be substantially more roads to be improved than shown in the bid estimate, he made no inquiry of Bonneville as to the estimated quantities. He gave as a reason the fact that "It's not unusual for estimated [actual] quantities to vary substantially from that shown in the contract documents." (Tr. 100.)

Affidavits (App's. Exh. D & E) submitted by the second and fourth low bidders, Wire Installation Contractors, Inc., and R. C. Hughes Corp., respectively, are to the effect that these bidders interpreted the invitation in essentially the same manner as did appellant and that they expected to be paid at the contract unit price for all stations of

November 27, 1973

contract access road improved in order to allow material and equipment to be moved to the site.

Decision

For reasons hereinafter stated, we conclude that appellant's interpretation of the invitation must be held to be reasonable and that the only real question is whether appellant's failure to raise the matter of the validity of the estimated quantities with Bonneville operates to deny

the claim.

Section 2-115 entitled "Quantities and Unit Prices" provides that the total estimated quantities necessary to complete the work as specified are listed in the "Schedule of Designations and Bid Prices." The contractor is required to furnish and place the entire quantity necessary to complete the work as specified, whether it is more or less than the estimated quantities. Under this provision it is reasonable to conclude that quantities necessary to complete the work are measurable by some objective standard set forth in the contract.

Access to the right-of-way was to be from intersecting or adjacent public roads and any access roads and access road rights-of-way for which rights have been acquired by

the Government (Section 3-103 entitled "Accessibility of Site"). Paragraph B of this section provides that 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 11 upon approval of location and type by the contracting officer. Paragraph D of this section provides in part that the contractor shall be solely responsible for use and occupancy of any private lands crossed by him in securing such additional access from public roads and from Government-acquired access roads as he finds necessary for his operations. This section makes it reasonable to conclude that generally the additional access roads which the contractor may construct at his own expense are those on the line right-of-way. Existing roads are not considered "undeveloped" even if unimproved.12 If the contractor requires access roads or rights-of-way in addition to those shown on the drawings, it is the contractor's responsibility to construct

or obtain them.

?”

Contract access roads are defined in Part V, Chapter 1, Section 5-102 of the specifications as "access roads required to be constructed or improved by the specification or by supplemental orders from the contracting officer ***." This section further provides that the contractor shall construct or improve access roads in locations specified by the drawings, by the specifications, and by the contracting officer. As we have seen, it is undisputed that neither the drawings nor the specifi

11 Mr. Wagenhoffer testified that undeveloped to him meant a road that had not been constructed (Tr. 52). He indicated, however, that access roads shown on the drawings would be developed even if unimproved.

12 Note 11, supra. Existing access roads had been constructed some 20 years ago (Tr. 27).

cations designated any particular sections of access road for improvement. Under Section 5-111 payment was to be authorized only for that access road work required by the specifications, drawings, and the contracting officer.

Non-contract access roads are defined as those roads on the line right-of-way constructed for the contractor's convenience (Section 5-201). All costs of contracting and improving these roads were to be borne by the contractor. Non-contract access roads are divided into two types: permanent and temporary. Permanent access roads are those that provide access to tower or structure sites and are to be constructed or improved to the same standard as contract access roads. Temporary access roads (Section 5-203) are those that provide access to landings and yarding areas and which are not to be incorporated into the Government's permanent access system. Temporary access roads were to be destroyed upon completion of the work and the land restored to its original cross section.

Bearing in mind the requirement of Section 2-115 that the contractor would be required to complete the work specified whether more or less than the estimated quantities and Section 3-103.B providing that the "contractor may at his expense construct additional roads and other means of access within the boundaries of the line right-of-way" and reading Section 5-102 in conjunction with Section 5-201 et seq., we think that a bidder or contractor could reasonably conclude that the

distinction between "contract” and "non-contract" access roads was related to whether payment would be made for their improvement as well as their location on or off the rightof-way. Access roads shown on the drawings were all off of the rightof-way and another way of phrasing the foregoing would be that the contractor could expect to be paid at the contract unit price for all Government-acquired roads shown on the drawings which were improved to the standards of Section 5-104, providing their improvement. was necessary for the primary work which was construction of the line.

The Government argues that bidders were essentially told that Bonneville would pay for 40,000 feet of road improvement and that "*** bidders should expect to be paid for only the quantity of roads specified by the Contracting Officer with a possibility of some overrun or underrun." (Post-Hearing Brief, pp. 1, 2.) The problem with this position is that whether there was an overrun or underrun was not ascertainable by any standard set forth in the contract.13 The contracting officer's finding that the Government had determined that its needs were for the improvement of 40,000 feet of access roads and the assertion (Post-Hearing Brief, p.

13 Appellant points out and the record estabIishes that Bonneville's interpretation allowed It to pick and choose between access roads to be improved for pay and, indeed, between stations of the same access road with the result that portions of an access road were flagged for improvement for pay while portions of the same road in equally poor condition were not so flagged. Appellant asserts that it is unreasonable to expect a bidder to anticipate such a result.

November 27, 1973

2) that this need was based on ac cess by nothing larger than a 4 x 4 truck can avail the Government nothing since this standard was not set forth in the invitation and resulting contract.14

The Government also argues that the contract cannot reasonably be read as containing any warranty express or implied, that the access road system would be suitable for the contractor's construction requirements and that the contractor would be paid for making the road suitable. We can agree with this contention and the authority cited by the Government 15 without altering the result since we find the argument inapposite. Appellant's contention is not that there was a warranty of access but that it reasonably concluded that existing [Government-acquired] access roads either were or would be brought to the standards of Section 5-104. The record is clear that roads to the standards of the specifications were adequate for appellant's pur

14 See Ets-Hokin Corp. v. United States, 190 Ct. Cl. 668 (1970); Firestone Tire & Rubber Co. v. United States, 195 Ct. Cl. 21 (1971). See also Erhardt Dahl Andersen, IBCA-223 (December 1, 1961), 68 I.D. 201, 61-2 BCA par. 3219.

15 Premier Electrical Construction Company v. United States, 473 F.2d 1372 (7th Cir. 1973). In the cited case the contract provided that access to the work site would be provided through designated state and county roads. In rejecting the contractor's claim for extra costs incurred when a spring thaw made one of the designated roads impassable, the Court ruled that the language used was merely descriptive of available access roads and that a fair reading of the contract made it evident that the Government had not assumed the obligation of correcting the situation which developed. The Court was careful to note that there was no inadequate disclosure of facts known to the Government and unknown to the plaintiff.

poses. If access roads to these standards were insufficient for access by appellant's equipment or if access roads in addition to those shown on the drawings were required, we think it clear that it was appellant's responsibility to provide them.

We turn to the Government's most serious contention, i.e., that the pre-bid site investigation should have alerted appellant to the fact that under its interpretation of the invitation there was a substantial under-estimate of the quantities of road improvement and of the need to inquire of Bonneville as to what was intended in this regard. Representatives of the bidders who testified, Mr. DeFeyter of appellant and Mr. Pettijohn of Pettijohn Engineering Co., Inc., readily admitted that they considered Bonneville's estimate of the quantity of road improvement would be exceeded. However, they defended their failure to bring this matter to the attention of Bonneville upon the ground that under the terms of the invitation their concern was to develop a reasonably accurate unit price for road improvement and on the further ground that it was not unusual for there to be substantial variances between estimated and actual quantities. Assuming the validity of this latter assertion, the question presented is whether a bidder on notice of a potential substantial overrun in estimated quantities is on notice of an error in specifications and is required to bring this situation to the attention of the Government.

It appears to be settled law that, in the absence of language requiring a bidder to make its own determination of quantities, a contractor is generally entitled to rely on the reasonable accuracy of Government estimates.16 This being true no reason is apparent why a prospective bidder on notice of a substantial overrun should not be expected to seek clarification or risk having the interpretation of the contract resolved against him.17 Application of this rule here would require denial of the claim for, although we have found appellant's interpretation of the invitation reasonable, a site investigation in conjunction with the estimated amount of road improvement makes it equally reasonable to conclude that appellant was on notice of a possible error in specifications and it is evident that appellant's assumption that access roads shown on the drawings either were or would be brought to the standards of the specifications was favorable to the contractor.18 Neverthe

16 See Norfolk Dredging Company v. United States, 175 Ct. Cl. 594 (1966) (upholding a Board decision to the effect that a substantial underrun from estimated quantity constituted a changed condition); Barringer and Botke, IBCA-428-3-64 (March 23, 1966), 66-1 BCA par. 5458 (contractor entitled to rely on estimates where error was not discoverable upon a reasonable site investigation or from examination of Government drawings.) Cf. Kreider Bros., IBCA-545-2-66 (April 5, 1967), 67-1 BCA par. 6260 (overruns and underruns from estimates do not in themselves constitute changed conditions).

17 Beacon Construction Co. v. United States, 161 Ct. Cl. 1 (1963). Cf. Mountain Home Contractors v. United States, 192 Ct. Cl. 16 (1970). 18 It has been stated that:

"This tendency on the part of contractors to assume too much is rather widespread." McBride & Wachtel, Government Contracts, Section 2.170[4] at 2-360.

less, under the circumstances present here, we decline to apply the rule for the reason that the time the invitation was issued the Government had in its possession material information, i.e., the list of access road improvement for pay, which it failed to disclose.19 When the Government enters into a contract, as part of its implied duty to help rather than hinder performance, it is obligated to provide the contractor with special knowledge in its possession which might aid the contractor in performing.20 The courts. and the Boards have taken an increasingly stringent attitude toward the withholding of information the disclosure of which would be likely to have a material effect on a contractor's estimate of costs.21 We, therefore, hold that any possible duty of appellant to make inquiry has been nullified by Bonneville's failure to disclose the access road improvement list which according

10 See, e.g., G. W. Galloway Company, ASBCA Nos. 16656 and 16975 (September 19, 1973), Slip Opinion at 55: "None of the foregoing important information was disclosed to appellant prior to bid opening, but under the rulings in Boland [ASBCA No. 13664 (October 28, 1970), 70-2 BCA par. 8556], Helene Curtis, [160 Ct. Cl. 437 (1963)] and BatesonStolte, [145 Ct. Cl. 387 (1959)] it should have been. Failure to do so imposes liability on the Government for the excess costs incurred by appellant on account of the defective tools. The "as is" disclaimer of warranty is not a defense under the circumstances of this appeal."

20 See Aerodex, Inc. v. United States, 189 Ct. Cl. 344 (1969).

21 Hardeman-Monier-Hutcherson V. United States, 198 Ct. Cl. 472 (1972); Maryland Painting Company, Eng. BCA No. 3337 (August 17, 1973), 73-2 BCA par. 10,223; F. F. Slocomb Corporation, ASBCA No. 16715 (August 20, 1973), 73-2 BCA par. 10,209: Elrich Construction Co., Inc., GSBCA No. 3657 (August 10, 1973), 73-2 BCA par. 10,187.

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