Tetra Tech Facilities Construction, LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Tetra Tech Facilities Construction, LLC ) ASBCA Nos. 58568, 58845
)
Under Contract No. W912K6-09-C-0002 )
APPEARANCES FOR THE APPELLANT: Michael L. Burnett, Esq.
Patricia M. Rosendahl, Esq.
Greenberg Traurig, LLP
Houston, TX
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
CPT Ahsan M. Nasar, JA
Brian E. Bentley, Esq.
CPT Meghan E. Mahaney, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN
Tetra Tech Facilities Construction, LLC (hereinafter Tetra Tech or appellant)
appeals from a contracting officer's (CO's) final decision denying its certified claim for
an equitable adjustment due to differing site conditions encountered in constructing an
addition and alterations to the Army Aviation Support Facility at Aberdeen Proving
Ground, Maryland. Only entitlement is at issue. We have jurisdiction under the Contract
Disputes Act, 41 U.S.C. §§ 7101-7109. We decide entitlement in favor of Tetra Tech.
FINDINGS OF FACT
Solicitation and Contract Award
1. Solicitation No. W912K6-09-R-OOO 1 was issued by the United States
Army Property and Fiscal Office (USPFO) on 31 March 2009. 1 It called for the
design and construction of an addition and alteration to the Maryland Army Aviation
Support Facility (AASF), Weide Army Airfield, Edgewood Area, Aberdeen Proving
Ground (APG), Maryland. (R4, tab 3) The procurement was structured as a two phase
"design-build" process under FAR Part 36.3 (id. at 4 ). As described in the solicitation:
1
A number of acronyms used and defined in this decision are collected in an Acronym
Glossary appended to the decision for the reader's convenience.
This process requires potential contractors to submit their past
performance, basic technical approach and capability
information initially for review and consideration by the
Government. Following the review, evaluation, and rating of
these proposals, the Government intends to select three, but
no less than two and not to exceed five, of the highest rated
contractors to receive the technical requirements package and
to participate in the Phase Two process of this solicitation.
In Phase Two, the selected offerors would be given the opportunity to submit technical and
cost proposals and compete for contract award. (Id. at 3, 4) Tetra Tech was selected for
Phase Two and was awarded Contract No. W912K6-09-C-0002 (the contract) in a total
amount of $22,564,852 on 23 September 2009 (R4, tab 1; app. supp. R4, tab 72). The
contract work consisted of renovation of an existing 11,500 square foot (SF) facility;
excavation and construction of a 19, 769 SF addition complete with loading dock, storage
area, access road, and building access apron; expansion of the hangar for an additional
33,455 SF heated and 32,755 SF unheated hangar space; and additional hardscape consisting
of aircraft parking pads, taxiways, and a transit pad (app. supp. R4, tab 74 at 7).
2. The contract as awarded consisted of "(a) the Government solicitation
and your offer, and (b) this contract award. No further contractual document is
necessary." (R4, tab 1 at 2) The contract included the FAR 52.236-2, DIFFERING SITE
CONDITIONS (APR 1984) clause, which provides:
(a) The Contractor shall promptly, and before the
conditions are disturbed, give a written notice to the
Contracting Officer of ( 1) subsurface or latent physical
conditions at the site which differ materially from those
indicated in this contract; or (2) unknown physical conditions
at the site, of an unusual nature, which differ materially from
those ordinarily encountered and generally recognized as
inhering in work of the character provided for in the contract.
(b) The Contracting Officer shall investigate the site
conditions promptly after receiving the notice. If the
conditions do materially so differ and cause an increase or
decrease in the Contractor's cost of, or the time required for,
performing any part of the work under this contract, whether
or not changed as a result of the conditions, an equitable
adjustment shall be made under this clause and the contract
modified in writing accordingly.
(c) No request by the Contractor for an equitable
adjustment to the contract under this clause shall be allowed,
2
unless the Contractor has given the written notice required;
provided, that the time prescribed in (a) above for giving
written notice may be extended by the Contracting Officer.
(d) No request by the Contractor for an equitable
adjustment to the contract for differing site conditions shall be
allowed if made after final payment under this contract.
(Id. at 16) In addition, the General Conditions of the contract included the following provisions:
3.04 SITE INVESTIGATION: The Design-Builder
acknowledges that the Design-Build Team has investigated and
satisfied [sic] as to the conditions affecting the work; including
but not restricted to those bearing upon transportation, disposal,
handling and storage of materials, availability of labor, water,
electric power, roads and uncertainties of weather, river stages,
tides or similar physical conditions at the site, the conformation
and conditions of the ground, [and] the character of equipment
and facilities needed preliminary to and during prosecution of
the work. The Design-Build Team further acknowledges that
it has satisfied itself as to the character, quality and quantity
of surface and subsurface materials or obstacles to be
encountered insofar as this information is reasonably
ascertainable from an inspection of the site, including all
exploratory work done by the Government and/or available
from the using agency. Any failure by the Design-Build
Team to acquaint itself with the available information will not
relieve it of responsibility for estimating properly the difficulty
or cost of successfully performing the work. ...
3.05 CONDITIONS AFFECTING THE WORK: The
Contractor/Design-Build Team shall be responsible for
having taken steps reasonably necessary to ascertain the
nature and location of the work and the general and local
conditions, which can affect the work or the cost thereof.
Any failure by the Contractor/Design-Build Team to do so
will not relieve him from responsibility for successfully
performing the work without additional expense to the
Government.
(App. supp. R4, tab 74 at 111-12)
3. Appendix A to the Procedural Manual for Professional Services (which was
Section III of the Phase Two solicitation) required the successful bidder to arrange for a
3
subsurface exploration and evaluation and analyze the information relative to the site
and subsurface conditions "as they pertain to project requirements." Further:
[T]he data and analysis shall be adequate, correct and
complete for the intended purposes of planning, design,
quantity and cost estimating, and determining the
construction feasibility of the project.
NOTE: The subsurface data provided by the government
to support the RFP is general in nature and is not
intended to be an adequate representation of the entire
site. The Design-Builder must insure adequate subsurface
information to determine the construction feasibility of
the project.
(App. supp. R4, tab 74 at 275)
4. Pursuant to the contract, Tetra Tech was responsible to come up with a design for
the project that would have to be approved by the government before the actual construction
work could begin. Tetra Tech was required to submit designs to the government for review
and approval at various stages of completion of the design documents. Only after the 100%
design documents were approved would the government issue a notice to proceed (NTP).
(Tr. 1/49-50)
Contract Indications Regarding Site Conditions
5. Included with the Phase Two solicitation as Attachment B was a document
entitled "Geotechnical Engineering Exploration and Analysis" dated 11 February 2009
and prepared by Giles Engineering Associates, Inc. for the Maryland Military
Department2 (Giles Report) (R4, tab 74 at 488-523). The Giles Report was included in
the solicitation documents to provide the bidders with geotechnical information about the
project site to allow them to develop proposals (id. at 111, 491 ). The Executive
Summary of the report summarized its findings as follows:
Six geotechnical test borings were performed at the subject
site to evaluate subsurface conditions. Topsoil consisting of
silty clay and sandy clay with trace organic matter was at the
surface at the test borings. The topsoil was measured to be
2
The Maryland Military Department, otherwise known as the Maryland Army National
Guard (MDARNG), leased the property where the work was to be done from
the Department of the Army and was the intended end user of the facility
(tr. 2/120-21; app. supp. R4, tab 193). USPFO is part of the MDARNG
(tr. 2/120-21).
4
between about 4 and 8 inches thick. The native soil below the
topsoil generally consisted of firm silty sand and stiff to very
stiff silty clay and sandy clay. It is estimated that the water
table was about 7 to 11 feet below-ground at the test borings
with perched water at about 1Yi feet below-ground when the
[exploration] was conducted.
The proposed building will be a two-story structure. It is
assumed to be a masonry structure that will not have a
basement or other below-ground spaces. Based on the
assumed first floor elevation ... a spread footing foundation
designed for a 3,000 pound per square foot (psf) maximum,
net, allowable soil bearing capacity is recommended for the
proposed building.
(Id. at-491)
6. Giles reported Material Conditions in Section 6 of its report. The topsoil was
characterized as consisting of silty clay and sandy clay with trace organic matter in layers
4 to 8 inches deep. Below that:
The native soil below the topsoil at Test Boring No. 1
generally consisted of firm silty fine sand to at least the
16 foot test boring termination depth. The native soil at Test
Boring No. 2 generally consisted of stiff silty clay to at least
the 21 foot test boring termination depth. The native soil at
the remaining test borings generally consisted of stiff to very
stiff silty clay and sandy clay and firm clayey sand, silty sand,
and sandy silt to at least the 16 and 21-foot test boring
termination depths.
(App. supp. R4, tab 74 at 494) Giles also addressed groundwater:
7.0 GROUNDWATER CONDITIONS
It is estimated that the water table was about 7 to 11 feet
below-ground at the test borings with perched water at about
1Yi feet below-ground .... Groundwater conditions will
fluctuate and groundwater may become perched above the
water table.
The estimated water table depth is only an approximation based
on the colors and water content of the retained soil samples, and
water levels that were encountered at the test borings. The
5
actual water table depth may be higher or lower than estimated.
If a more precise depth estimate is needed, groundwater
observation wells are recommended to be installed and
monitored at the site.
(Id. at 495)
7. The Giles Report was the only source of information provided by the
government about subsurface conditions on which bidders could base their proposals
(tr. 4/31-32). While a site visit was conducted prior to bid, Tetra Tech and the other
bidders were limited to visual observations-no invasive investigation was allowed
(tr. 1/52, 298-99).
8. The significance of the Giles Report's characterization of the soils at the
project site was addressed by several witnesses. Mr. Robert Allison, Tetra Tech's design
manager, testified that after looking at the report and the boring logs and the description
of the soils as firm or stiff, he had no concerns about the project from a design
perspective (tr. 1/290). Nor was he concerned about either the amount of water or its
elevation. Mr. Richard Lipscomb, appellant's senior project manager, testified: "He
[Giles] described the soils as being firm, stiff soils that we could work off of and build off
of, that there was nothing out there that would indicate that we had to remove soils or
replace soils due to unsuitable conditions." (Tr. 1/43) Dr. Christopher Meehan,
appellant's expert geotechnical engineering witness 3, reviewed the Giles Report and had
the following observations:
A The soils encountered on the project site were quite
variable in nature. There was sand, silt and clay in extensive
proportion and sand particles are larger, silt is smaller, clay is
3 Dr. Meehan holds a tenured Associate Professor position in the Department of Civil and
Environmental Engineering at the University of Delaware. He has both a Masters
and a Ph.D. degree in civil engineering from Virginia Tech with a specialty focus
in geotechnical engineering. He engages in teaching, research, and community
service focused on geotechnical engineering, which includes participation in a
number of professional organizations at the national level, organizing conferences
and serving in an editorial capacity for publication of conference proceedings; and
doing technical review of journal papers and conference articles. (Tr. 3/7-10) He
has published numerous articles on topics including the behavior and porosity
of saturated soils, ground improvement technologies, and compaction control
(tr. 3/12). He also has extensive work experience doing construction quality
assurance, inspection of soils, soil sampling and classification, ground water
assessments, and inspection of site conditions (tr. 3/13-14 ). He was not present at
the site during construction and was not involved with the project in any way
while it was ongoing.
6
smaller than that so you have kind of a trend in gradation.
There [were] many classifications of what we call
intermediate classifications for example a silty clay is a clay
that has a significant percentage of silt mixed in with it.
Sometimes it's mixed uniformly, sometimes it is kind of
present in layers. So you saw significant stratigraphy in
layering of the site, a lot of variability in grain size and a lot
of general variability in properties. In terms of the actual
consistency of the materials they were described as stiff quite
frequently, sometimes you would see dents were medium or
firm there were a few instances where things fell outside of
that range but the predominant description of the in situ
condition of the soils was something like medium to stiff.
Q Did you see a lot of soft soil in these borings sir?
A No I did not.
Q Now why when you say we like medium, stiff,
firm, why do you like that?
A Generally it exhibits good engineering behavior[-]
the soils tend to be stronger, they tend to be less compressible
and so when we put load on them they are less likely to fail,
they are less likely to move [and] they have good engineering
characteristics.
(Tr. 3117-18)
9. The government's expert, Mr. Ethan Weikel, 4 testified to the contrary, that the
Giles Report put Tetra Tech on notice that it would encounter soils at or near saturation. 5
Mr. Weikel testified that the boring log for Giles Boring No. 2, which characterized the soil
4
Mr. Weikel holds a bachelor's degree in Science and Geology from the College of
William and Mary and is a hydrogeologist for the U.S. Army Corps of Engineers
(tr. 5/7). He has worked on eight projects at APG over the past several years (id.).
He is not a geotechnical engineer and cannot offer a geotechnical engineering
opinion (tr. 5/23 ). He is qualified to opine on evaluation of subsurface conditions
but not on design or construction recommendations (tr. 5/27-28, 30-31).
Mr. Weikel based his opinions primarily on the raw boring data in the Giles and
Haley & Aldrich reports and did not review the daily project records (tr. 5/170).
He was not present at the site during construction and was not involved with the
project in any way while it was ongoing.
5
The government did not call a witness from Giles Engineering to testify regarding its
geotechnical report.
7
as a silty clay, showed "a water content in the high single digits to upper teens" which
"begets material that is near saturation." (Tr. 5/38-39) The Board notes that the log for
Giles Boring No. 2 recorded moisture contents from 7% to 14%, the latter being 15 feet
down, and characterized the soils as "damp" or "moist," not saturated. No water was
encountered during drilling, which was terminated at 16 feet down. (Supp. R4, tab 70 at 529)
10. With respect to Giles Boring No. 3, which was terminated at 21 feet down,
Mr. Weikel testified that the log showed water content of 12% to 13%, and stated that
water content "in the mid-teens to upper teens," "for dense silts and clays," means "you
hit the saturation limit for that material" (tr. 5/39-40). The Board notes that the log for
Giles Boring No. 3 characterized the soils, in descending order, as sandy clay, clayey fine
sand, silty fine sand, silty clay, silty fine sand, and silty clay. It did not characterize the
soils as "dense" or as saturated. Each soil layer was characterized as moist or damp,
except for the silty fine sand layer encountered at approximately the same level at which
water was encountered-14.5 feet down-which was characterized as "wet." (Supp. R4,
tab 70 at 530)
11. For Giles Boring No. 4, terminated at 21 feet down, Mr. Weikel testified that
water content in the "mid-teens" for dense silty clay "indicates a material that's near
saturation" (tr. 5/42). The Board notes that the log for Giles Boring No. 4 encountered
water at 9 feet down. The water content of the bottom-most layer of silty clay was recorded
as 15% at 15 feet down and 13 % at 20 feet down, and this layer was characterized as "wet."
No water content was recorded for the sandy layer above it starting at 8.5 feet down, but it
was characterized as "moist to wet." Above 8.5 feet the soil was characterized as "moist."
(Supp. R4, tab 70 at 531) The log did not label the soils as "dense."
12. For Giles Boring No. 5, terminated at 21 feet down, Mr. Weikel testified
that percent water content in the mid- to upper teens "for dense clays" indicates those
materials are at or near saturation (tr. 5/44). The Board notes that the log for Giles
Boring No. 5 showed perched water at 1.2 feet down, but no water was encountered
thereafter down to the 21 foot termination depth. 6 The water content of the soil ranged
from I 0% at 5 feet down to 17% at 10 feet down and thereafter, to 21 feet down, was
between 14% and 16%. No water content was recorded for the top sandy layers, only for
the silty clay beginning at about four feet down, which the log characterized as "moist"
and did not characterize as "dense." (Supp. R4, tab 70 at 532)
13. Mr. Weikel did not address Giles Boring Nos. 1 or 6. Water content was
not recorded for these borings (supp. R4, tab 70 at 528, 533). The log for Boring No. 1
(terminated at 16 feet down) shows that water was encountered at 11 feet down and
6
According to appellant's expert, Dr. Meehan, perched water is water that is trapped,
generally above the water table, by an impermeable layer such as rock or clay
(tr. 3/27). It is usually considered to be a temporary or transient condition (id.),
although it can remain in a location for some time (tr. 3/27-28).
8
describes the soils as "moist" above four feet and "moist to wet" below four feet (id. at 528).
The log for Boring No. 6 (terminated at 16 feet down) shows no water was encountered and
the soils are described as "moist" all the way down to the termination depth (id. at 533).
14. Mr. Weikel testified that saturation levels directly correspond to the
"liquid limit" - the point at which soils begin to act like a liquid and are not compactable
(tr. 5/40) - but the weight of the evidence is to the contrary. Dr. Meehan testified that
saturation does not equate to liquid limit. Liquid limit must be determined by a
specialized laboratory test:
A ... So saturation is defined as the volume of water to
the volume of voids. So 100 percent saturation, a completely
saturated soil, all of the ... void space is filled with water. So
when you say saturation, I'm assuming you're talking about
100 percent saturation, not the degree of saturation.
Q Yes
A So, yes, and then liquid limit is ... a standardized test
that we do to kind of measure that property that you describe
[where soil begins to act more like a liquid than a solid].
Q Was it Atterberg?
A Yes, Atterberg limits test.
Q Okay.
A Yes, there's a specific laboratory test that's run.
(Tr. 3/76) Haley & Aldrich, Inc., Tetra Tech's geotechnical engineering firm, reported the
results of its subsurface investigation in a report dated 4 March 2010. Its report included the
results of the Atterberg limits tests it conducted on the project soils. 7 The liquid limits
ranged from 18% for a sample of sandy silt to 51 % for a sample of clay soil. Sixteen of
19 sample results yielded a liquid limit of 22% or above. (App. supp. R4, tab 57 at 264)
15. The soils water content recorded by the Giles Report ranged from 7% to 17%.
The highest value of 17% is recorded in the log for Boring No. 5 at 10 feet down. Above
10 feet, the highest percentage recorded is 13%. (Supp. R4, tab 70 at 528-533) The March
2010 Haley & Aldrich report determined that optimum moisture contents for compaction
were between 8.7% and 12.2% (app. supp. R4, tab 57 at 259-61). Haley & Aldrich later
characterized the data in the Giles Report regarding soil moisture content: "[I]n-situ
moisture contents typically ranged between 8 and 15 percent, which is very close to the
optimum moisture content required for successful compaction" (app. supp. R4, tab 103 at 2).
7
Neither Giles Engineering nor Mr. Weikel conducted Atterberg limits testing.
9
16. Mr. Weikel also testified regarding the boring logs contained in the Haley
& Aldrich report and the water contents indicated therein (tr. 5/44-78). Mr. Weikel in his
expert report cited the data from Haley & Aldrich Boring No. 8, where groundwater was
encountered at one foot below ground level, and performed a series of calculations
assuming that groundwater was at the same level for the entire new building excavation.
Based on that assumption, he concluded that Tetra Tech should have known that it would
be excavating 8 feet into groundwater and would need to remove nearly 300,000 gallons
of water from the excavation (app. supp. R4, tab 312 at 8). Mr. Weikel relied on this
calculation and the Haley & Aldrich recommendation to design for groundwater at 1 foot
below the surface to opine that Tetra Tech should have planned to institute a site-wide
dewatering system 6 to 8 months in advance of attempting excavation (id.). However,
Mr. Shelton of Haley & Aldrich testified to the fact that their boring results were affected
by the melting of a significant layer of snow that had fallen in late December, causing
surface water to infiltrate directly into the boring holes and causing higher water levels in
some cases than would be expected in stabilized conditions (tr. 3/212-13). Mr. Shelton
also testified that Haley & Aldrich recommended that Tetra Tech assume groundwater at
one foot below ground level only for the design of certain elements that "could be
impacted ifthe water levels were as high as what we saw from a snowstorm or a large
rainstorm such as the underslab drainage system. But from a construction standpoint we
knew that water wasn't one foot below the ground." (Tr. 3/218) Rather, he stated that
Tetra Tech would have to excavate down 10 to 15 feet to encounter the water table (id.).
17. The Board finds that the Giles Report did not warn of soils "at or near
saturation" nor of soils that were at or near their liquid limit, such that bidders would
reasonably expect soil instability. Rather, the Giles boring logs and geotechnical
evaluation thereof told bidders on the project to expect (and thus the contract indicated)
medium to stiff constructible soils with close to ideal moisture content for compaction.
The record discloses no other reason Tetra Tech should have anticipated anything but
medium to stiff constructible soils at the site.
Tetra Tech's Geotechnical Investigation and Modification No. 3 to the Contract
18. Pursuant to the contract's requirement to conduct a thorough subsurface
exploration and evaluation (finding 3), Haley & Aldrich conducted an evaluation of the
site's subsurface soil and groundwater conditions and developed recommendations for the
design and construction of the structure's foundations. Haley & Aldrich performed their
investigation from 24 December 2009 to 7 January 2010 and issued their report on 4 March
2010. (R4, tab 8) Prior to the issuance of their report, they advised Tetra Tech that soil
borings taken underneath the footprint of the hangar addition indicated the need for a deep
foundation system rather than the shallow spread footing foundation system recommended
in the Giles Report. Their concern, briefly stated, was that building the addition to the
existing hangar on a spread footing system would result in too much settlement vis-a-vis the
existing building, causing the two to be unacceptably out of alignment. Tetra Tech passed
this information on to the USPFO CO on 9 February 2010, attaching a draft version of the
10
Haley & Aldrich report and noting that Tetra Tech would need more information before
they could design the deep foundation system. (Supp. R4, tab 77)
19. The final report submitted by Haley & Aldrich on 4 March 2010 made the
following recommendation with respect to the foundation for the hangar addition:
The geotechnical report included in the RFP for the project
[the Giles Report] indicated that a shallow spread footing
foundation system designed using a bearing pressure of
3,000 psfwould be suitable for support of the structure ....
The results of our evaluation indicate that the [recommended
foundation] will result in total settlements on the order of
3 in. to 4 in.... Through our discussions with the design team,
we have learned that the anticipated settlements are not within
tolerable limits for the structure and supporting infrastructure.
Furthermore, it is our understanding that the proposed hangar
will abut the existing hangar, which is supported on a deep
foundation system. In order to maintain similar performance
characteristics, the foundation system of the proposed hangar
should perform similarly to the foundation system that
supports the existing hangar. Consequently, we recommend
that the hangar be supported on a deep foundation system
consisting of auger-cast piles.
(R4, tab 8 at 15)
20. On 23 April 2010, the USPFO contracting specialist requested that Tetra Tech
provide the government with pricing for the change from a spread footing foundation system
to a deep foundation system using 12-in. diameter cast-auger piles (app. supp. R4, tab 80).
On 7 May 2010, the government issued Modification No. POOOO 1 to the contract, suspending
work "on the Structural Design due to differing conditions between the RFP's soil report by
Giles dated February 11, 2009 and TTFC's soil report by Haley & Aldrich dated 4 March
2010" (R4, tab 9). The suspension of work on the structural design was lifted, effective
15 July 2010, by Modification No. P00002 (Mod 2), issued on 23 July 2010. Mod 2 stated
that the government had decided to adopt Tetra Tech's recommendation for a deep foundation
system for the hangar addition and that funding for the deep foundation footings would be
provided under a separate contract modification. (R4, tab 10 at 3)
21. Bilateral Modification No. P00003 (Mod 3) to the contract adding $1,271,963
in funding to the contract for the deep foundation system and extending the contract period
of performance from 6 November 2012 to 5 January 2013 was signed by the USPFO CO
on 30 September 2010. Mod 3 stated that "Verbal approval" for the contractor to proceed
with related design work had been given 20 August 2010. (R4, tab 11 at 2) Tetra Tech
completed the deep foundation design in September of 2010 (tr. 1/69).
11
Subsurface Saturated Soils South of Column Line 9 and Leaking Fire Hydrant
22. Meanwhile, on 21 September 2010, the government issued the NTP for
construction to begin (app. supp. R4, tab 92). The first construction work performed
by Tetra Tech involved sediment and erosion control, to include excavation of retention
(or detention) ponds to a depth of approximately 10 feet, as well as installation of silt
fences and excavation of channels to direct surface water runoff into the retention ponds
(tr. 2169, 70-71). 8 The soils encountered during this operation were stiff, constructible
soils as described in the Giles Report, and no water was encountered (tr. 1/76, 258, 2/70).
The sediment and erosion control measures put in place by Tetra Tech worked effectively
to control surface water from precipitation and protect exposed subgrades (tr. 2/97).
After completing the earthwork and receiving a discharge permit for stormwater from the
MDE on 30 November 2010 (R4, tab 230), Tetra Tech began site excavation for the new
building on 1 December 2010. 9
23. Excavation work started on the north side of the project site next to the wall of
the existing building and progressed south (tr. 1/77). Earth was excavated in two-foot
layers to facilitate sweeping for unexploded ordnance, since the detection equipment
being used during the sweep could only penetrate two feet deep (tr. 1/79). The area north
of Column Line 9 10 was excavated without any issues down to one foot above sub grade
(sub grade for the building addition was six to eight feet below original grade) in the first
half of December 2010 (tr. 2/74, app. supp. R4, tab 75, vol. 2 at 10 of36). On or about
16 December, however, as Tetra Tech continued its excavation south of Column Line 9,
it encountered saturated, unstable soil conditions. As described by Mr. Lipscomb:
"the further south we progressed the worse the soil conditions got. When they cut the
first couple layers down at the south end it was fine. But then as we got deeper it got
worse .... And then it got to the point where they actually couldn't even continue."
(Tr. 2/75-76) At the progress meeting held on 22 December 2010, Tetra Tech notified
the government of the possible differing site condition (R4, tab 13).
24. On 24 January 2011, Tetra Tech wrote CO Hall 11 enclosing a Haley & Aldrich
report on the recently encountered soil conditions (R4, tab 14 ). The enclosed report
states in pertinent part:
·s Tetra Tech's Stormwater Pollution Prevention Plan (SWPPP) was submitted to the
Maryland Department of the Environment (MDE) in July 2010 (app. supp. R4,
tab 218) and was approved by the MDE on 13 September 2010 (id., tab 222).
9 The parties in their briefing appear to agree on this date but they do not provide, and the
Board has been unable to find, record citations for it.
10
Rule 4, tab 293 is a map of the project site delineating the areas of the site requiring
soils remediation. It was prepared by Mr. Lipscomb as part of the REA
documentation (tr. 1/40). Mr. Lipscomb testified to the location of Column Line
9 on this map (tr. 1/77).
11
Mr. Ed Hall succeeded Ms. Rita Carter as CO on the contract in October 2010.
12
[I]t is our opinion that the currently exposed soils are
exhibiting pumping behavior that exceeds acceptable limits to
be considered as a suitable subgrade. Furthermore, we do not
anticipate that the subgrade soils, in their current state, can be
compacted to meet specification requirements due to excess
moisture that is trapped within the cohesive soils that underlie
the site. As such, some form of subgrade stabilization will be
required.
(Id. at 2). 12 Options for subgrade stabilization suggested in the report included geogrid
stabilization and cement/lime stabilization, depending on the severity of conditions (id. at 3-4 ).
25. The 24 January 2011 Haley & Aldrich report also discussed the differing
moisture contents reported in the February 2009 Giles Report and in the Haley & Aldrich
report of March 2010:
1. The geotechnical report included in the RFP that
was prepared by Giles Engineering Associates (Giles)
contained laboratory test data indicating that in-situ
moisture contents typically ranged between 8 and 15
percent, which is very close to the optimum moisture
content required for successful compaction.
2. During the subsurface investigation program that was
executed by Haley & Aldrich between 24 December 2009
and 7 January 2010, a significant snowstorm occurred that
delayed the investigation by approximately two weeks.
By the time work resumed, temperatures were above
freezing and the snow began to melt, causing the
subsurface soils to become saturated.
3. When comparing the natural moisture content of samples
tested by Haley & Aldrich to the natural moisture content
of the samples tested by Giles, our moisture contents
were significantly higher. However, the difference was
attributed to saturation caused by the melting snow. As
such, moisture contents indicated in the Giles
geotechnical report appeared to be more representative of
what to expect when excavation activities began and the
subgrade soils were exposed.
12
"Pumping" is a form of soil instability characterized by wave-like behavior when
heavy equipment moves across saturated soil (R4, tab 14 at 2 n.l).
13
(R4, tab 14 at 3) Haley & Aldrich continued by noting that since the Giles data indicated
moisture contents would be near the optimum required for compaction, no subgrade
stabilization measures had been originally recommended (id.). Moreover, while the cause of
the soupy soils was not yet known at this time, it was unlikely to be weather-related:
Precipitation data for October, November, and December
2010 indicate that the average precipitation level was
approximately 30% below the monthly average; furthermore,
there have not been any significant precipitation events
leading up to or during the current earthwork operations.
Taking this into consideration, it is highly unlikely that the
current subgrade conditions are seasonal or have been
influenced by recent weather patterns.
(Id.)
26. Not having received a response from CO Hall, Tetra Tech followed up its
24 January 2011 letter with another letter, dated 5 February 2011, in which it informed
the CO that in order to mitigate the impact on the project schedule, it was incurring costs
as a result of the saturated soils south of Column Line 9 (R4, tab 15). Specifically, it had
started construction of two stabilized stone access roads necessary to allow the auger cast
pile and concrete subcontractors to continue with their work, and had also undercut, at the
direction of the geo tech soil engineer, several areas underneath the grade beams between
Column Lines 1-8 due to poor soil conditions (id.). Neither the temporary access roads
nor the soils remediation were contemplated or priced in Tetra Tech's proposal, the
contract, or Mod 3 (tr. 1/93).
27. On 7 February 2011, Tetra Tech informed CO Hall that it had discovered a
leaking fire hydrant near the site of the new building, which had necessitated pumping
the surrounding area to remove excess moisture from the soil before proceeding with the
work (R4, tab 16). It suggested a meeting with USPFO to discuss the options and any
information or documentation needed by the government (id.). The hydrant discovered to
be leaking was scheduled to be removed during the project, and initially there was some
uncertainty over who was responsible for its maintenance. After discovering the
saturated soils surrounding the hydrant Tetra Tech dug a pit to start capturing the excess
water from the surrounding area. (App. supp. R4, tab 240) It then began pumping the
water out in order to be able to proceed with construction (R4, tab 16).
28. On 11 February 2011, Ms. Julianne Hitch, also a CO with the USPFO, sent
out a request for a "formal briefing" on the differing site conditions, to be held on
18 February 2011 (R4, tab 17). Government representatives in attendance were to
14
include CFMO, POZ Environmental, APG DPW, USPFO, and contracting. 13 At the
meeting, which Ms. Hitch attended but Mr. Hall did not, Tetra Tech discussed the leaking
infrastructure it was encountering 14 and explained the remediation options that were
available (tr. 11116-17). The government requested that Tetra Tech submit a cost
proposal for dealing with the issues thus far encountered (tr. 11119).
29. Tetra Tech submitted its cost proposal informally at the progress meeting on
23 February 2011 and formally by letter dated 25 February 2011 (R4, tab 19). The
proposal, for a total of $624,559 (direct costs and normal mark-up only), covered
excavation and replacement of unsuitable soils in the areas identified to date. Tetra Tech
noted that: "Given the poor soil conditions, south of column line 9, and since time is of
the essences [sic] with critical path activities (auger cast piles, concrete pile caps and
grade beams) we will begin replacement of this unsuitable fill beginning Tuesday,
March 1, 2011." (Id. at 1) On 4 March 2011, Tetra Tech followed up with a letter to
CO Hall pointing out that as of the date of the letter, no official response or direction had
been provided by the CO concerning how the contractor should proceed to deal with the
poor soil conditions south of Column Line 9 and that, therefore, Tetra Tech had no choice
but to move forward using its best judgment in order to mitigate the resulting delays and
impacts (R4, tab 20). This letter informed CO Hall that approximately 24 inches to
36 inches of undercut, with infill of number 3 stone, placement of a biaxial geogrid
fabric, and CR-6 stone, would be necessary to provide a proper subgrade. The letter
further informed the CO that the work had commenced 3 March 2011. (Id.)
30. On 8 March 2011, CO Hall responded to Tetra Tech's 24 January 2011 letter
and 25 February cost proposal (R4, tab 21 ). His letter states, in pertinent part:
This letter from the Federal government is response to your
TTFC Letter Number: S-075 dated January 24, 2011 and
S-089 dated Feb 25, 2011.. ..
The Maryland National Guard and the P & C Office is hereby
denying that "Any Differing Site Conditions" exist according
to the above reference letters, and is refusing that an
"Equitable Adjustment" does exist.. ..
13
APG DPW is the Aberdeen Proving Ground Department of Public Works (tr. 3/123).
POZ Environmental was the government's quality assurance contractor (tr. 2/278).
CFMO stands for Construction Facilities Maintenance Officer, the staff function of
the MDARNG responsible for building and maintaining its infrastructure (tr. 2/275).
14
Leaking infrastructure by this point included not only the fire hydrant but perforated
storm drains (see finding 48 et seq.).
15
The above letters stands [sic] on discovery ofthese conditions
of the Haley & Aldrich report of March 4, 2010 for site visits
on I 0 December 20 I 0 and also on the Haley & Aldrich report
page One section 3. Report prepared by Giles Engineering.
The P & C contract Office submits that the Contracting
Officer, per FAR [52.]236-2, was not notified "Promptly" in
written notice of Tetra Tech's intention to submit evidence of
Different Site Conditions existed.
The Haley & Aldrich report continues with the Subgrade
Stabilization Recommendation that "A dewatering Plan" be
in place by Tetra Tech. No "Dewatering" plan was
implemented to date of the January 24, 2011 S-075 letter.
In closing as the Supervisor Contract Specialist (SCS) on this
AASF Design Build Project the government is denying "Any
Different Site Conditions" exist. The failure to follow the
simple directions in the RFP page 180 and the very late
notification that "Different Site Conditions" might exist
coupled with Tetra Tech's refusal to "Dewater" when their
own report suggested it are some of the reasons why the
Federal Government does not recognize TTFC Letter Number
S-075 dated January 24, 2011 and S-089 dated Feb 25, 2011
that "Different Site Conditions" exist.
(Id. at 1-2)
31. Tetra Tech responded on 29 March 2011 with a letter (S-102) containing
a comprehensive timeline of meetings and correspondence constituting notice to the
government of the differing site conditions, starting shortly after their discovery (R4,
tab 25). It also addressed the CO's statements regarding dewatering, pointing out that the
Haley & Aldrich report refers to temporary dewatering during excavation such as by
means of sump pump, and not to dewatering as a means of permanent enhancement of the
subgrade (id. at 3-4, see also R4, tab 8 at 24). COL Tracy, the head of the USPFO, and
CO Hitch both testified at trial that CO Hall's assertions of lack of timely notice were
false (tr. 2/172-73, 269). On 8 April 2011, Tetra Tech followed up (S-107) to report to
CO Hall on the remediation measures it was taking and costs incurred to date. Again, it
requested that the government direct it to stop if it disagreed with the actions being
undertaken. (R4, tab 27)
32. On 23 March 2011, Tetra Tech notified CO Hall (S-096) that upon excavation
to subgrade elevation along the west side of the building, it had discovered poor soil
16
conditions similar to what had been encountered south of Column Line 9 (R4, tab 23).
The conditions would render it unsafe to move equipment into the area for exterior facade
work and placement of the asphalt base and pavement for the access road (id.). Mud
mats were brought in and ultimately the area was undercut to about 24 inches down and
backfilled with suitable material (app. supp. R4, tab 75, vol. 2 at 27 of 36).
33. On 25 March 2011, Mr. Lipscomb of Tetra Tech received an email from
COL Tracy responding to Mr. Lipscomb's earlier expression of concern over the
government's rejection of Tetra Tech's cost proposal for remediation. In the email,
COL Tracy informed Mr. Lipscomb that the "Government team" had reviewed the request
and had determined that "site conditions have not changed." (App. supp. R4, tab 258)
Thereafter, on 11April2011, CO Hall responded by email to Tetra Tech's 8 April 2011
letter, stating: "Attached is the government's letter dated March 8, 2011. This letter denies
that different site conditions exist. The area in Tetra Tech's letter S.107 is the same area
denied as different site conditions." (R4, tab 29) CO Hall never responded to Tetra Tech's
detailed 29 March 2011 rebuttal to his 8 March 2011 letter (tr. 11145).
34. On 25 March 2011, Tetra Tech followed up on the leaking fire hydrant with a
letter (S-100) to CO Hall informing him that although the water line was turned off after the
leak was discovered, it appeared that the leak had saturated the ground under the existing
concrete and asphalt pavement as well as adjacent grassy areas, all of which would need to
be removed and replaced to provide a proper base for the concrete apron. Because Tetra
Tech had received no response to its original letter of 7 February 2011, it proposed to begin
the undercutting, followed by stone infill, no later than 4 April 2011 in order to meet the
contract schedule. The letter noted that the cost for this work was included in Tetra Tech's
25 February cost proposal, which had been rejected, and requested that the government
notify Tetra Tech immediately if it did not want it to proceed with the work. (R4, tab 24)
35. The location of the fire hydrant leak corresponds to the water found
in Giles Boring No. 5 which was interpreted as "perched" water (finding 12).
Mr. Matt Conologue, general superintendent for Tetra Tech at the project site until
mid-August of2011 (app. supp. R4, tab 329 at 18, 22), testified that ifTetra Tech
encountered natural perched water in the course of its excavations it could be isolated and
pumped off into a retention pond, allowing construction activity to continue (id. at 51 ).
However, as construction activities reached the fire hydrant, it was apparent that there was
surface water and the surrounding area was being continually saturated by the leaking hydrant
(id. at 59). Once the water was turned off, the hydrant was removed, and the water main
leading to it was capped, the leaking ceased and the "amount of water in the excavation [was]
reduced considerably" (id. at 60).
36. There appeared to be a belief among some of the government witnesses
that the fire hydrant was damaged by Tetra Tech or one of its subcontractors (see, e.g.,
tr. 3/131 ). It was unclear whether this damage was supposed to have occurred by
jackhammering or by running into it with heavy equipment. However, Mr. Lipscomb
17
testified on cross-examination that personnel on site informed them that the hydrant had
been leaking for some time (tr. 11245). Mr. Lipscomb also testified that no one from the
government ever suggested to him while the project was going on that Tetra Tech caused
the fire hydrant leak (tr. 1/278). No government witness with personal knowledge of the
matter testified. Nor has the government directed our attention to any other evidence that
would suggest the fire hydrant leak was caused by damage occurring during construction.
Based on a preponderance of the evidence, including the Giles Report of perched water at
Boring No. 5 in 2009, we find that the fire hydrant leak was not caused by Tetra Tech and
that it was ongoing since at least 2009. While government solicitation documents did
disclose perched water at Giles Boring No. 5, the leaking fire hydrant was not disclosed
to Tetra Tech or any of the bidders on this project (tr. 1/308). Therefore, they would have
had no way of knowing that the "perched" water was being continuously refreshed by a
leak thereby causing the surrounding soil to be permanently saturated.
37. On 18 April 2011, Tetra Tech notified CO Hall that it had encountered
unsuitable conditions as it excavated into a slope at the southwest comer of the site
(S-117). The initial description was of an unstable subgrade, with the slope falling in
some areas, and visible seepage at the base of the slope, apparently flowing up from the
subgrade, with flow on the order of 2-5 gallons a minute. A diagram and photos of rusty
looking water coming up from the subgrade were attached. Tetra Tech requested a
meeting to discuss this latest condition and requested direction. (R4, tab 33)
38. On 23 April 2011, DPW representatives informed Mr. Conologue of Tetra
Tech that there was a leaking water valve just outside the limits of disturbance (LOD) on
the "Southwest boundary" of the project site and that it "had been leaking for years"
(app. supp. R4, tab 57 at 97, tab 321at68). On 27 April 2011, Tetra Tech advised CO
Hall by email that it had located a leaking water valve just outside the LOD, and stated
that it was investigating the relationship of the leaking valve to the unsuitable soil
conditions being experienced south of Column Line 9 (R4, tab 34 ). Two days later, on
29 April 2011, it followed up with a letter to the CO (S-130) containing additional
information:
This newly identified (new to Tetra Tech) leak discovered on
the East and West elevations outside the building footprint
adds to the concerns Tetra Tech has regarding the differing
site conditions encountered at the sub-grade level South of
column line 9. Below is a brief description of the
identification of this leaking water valve.
During water valve installation being performed on 23 April
2011, it was brought to Tetra Tech's attention by DPW that a
leaking water valve exists just outside our LOD in the
Southwest boundary of the project. During this conversation
18
with DPW, DPW advised Tetra Tech that this valve had been
leaking for years.
Upon discovery of this condition, we asked Haley & Aldrich
and our civil design team to revisit the site to further
investigate this condition to determine what impact this
condition has on ongoing and future work. At this time, we
do not know the full impact of this differing site condition
and will provide further documentation as it becomes
available.
(R4, tab 35) The same morning, CO Hall responded by email: "Outside the contractors
LOD, thus No Standing exists with P & Cat the USPFO" (R4, tab 36). On 2 May 2011,
Tetra Tech responded (S-132):
We are in receipt of your email dated April 29, 2011 and we
request that you, as Contracting Officer for this project,
engage with DPW to have the leaking water valve/pipe either
replaced or shut off to prevent further soil damage within the
LOD of this project.
The leaking valve/pipe is a major contributor to the saturated
soils on site and to date over $330,000 has been spent in the
replacement of poor soil conditions south of column line 9. It
is therefore imperative that these water leaks be eliminated in
order not to cause any further damage and/or delays to the
project.
(R4, tab 37) On 4 May 2011, CO Hall responded via email: "This once again has No
Standing with P & Cat USPFO. The area is outside Tetra Tech's LOD. No Standing
means NO Standing." (R4, tab 38)
39. The correspondence continued with Tetra Tech's letter response of 9 May
2011 (S-133) (R4, tab 39). Tetra Tech indicated that it understood the CO's position to
be that the leak was not USPFO's problem or concern, but that it (Tetra Tech) must
disagree. It attached reports from its two civil engineering consultants, Timmons Group
and Urban Engineering, and its geotechnical engineering consultant, Haley & Aldrich,
and summarized the conclusions of the reports:
[I]t appears that the water line in the vicinity of the south west
comer outside of our property line has been leaking for a
substantial period of time. This leakage has been confirmed
verbally by DPW. All three Engineering firms agree that
from their observations the leaking water is artificially
19
elevating the groundwater table around the site and is
traveling northwest, either through the aggregate I sand
backfill of the water main or in a sandy layer of dirt. As the
water enters the site it is currently discharging out of the cut
slope making the slope difficult to stabilize and impacting the
construction activities in this area.
(Id. at 1) Tetra Tech concluded its response by stating that no further work would be
done in the area until the leak had been eliminated and clear direction received from
USPFO on how it was to proceed. It requested a meeting with USPFO and the client to
discuss options for proceeding and any information or documentation USPFO required to
support the claim of differing site conditions. (Id. at 2)
40. Urban Engineers observed the following:
Upon walking the site within the LOD and outside the LOD,
and analyzing previous data and photographs from other
pre-construction or survey site visits, it is my opinion that the
existing water main or existing valves are leaking water and
the water that is leaking is then traveling along the
aggregate/sand backfill of the water main to the southwest
excavation slope where the hydrostatic pressure of the water
is then causing the slope to fail and washout daily.
(R4, tab 57 at 112) Urban Engineers' conclusion was based on the following factors
summarized from their report:
1. At the western most PVC pipe near the baseball field,
water originating from below ground was overflowing the top
of the pipe due to hydrostatic pressure. The normal
groundwater level at that location is several feet below grade,
yet surface water at this location has been present for a long
time. The ground surface was generally dry in other areas.
2. The location of the standing surface water to the west of
the LOD and the southwest comer of the project lines up with
the east-west water main. There are three distinct areas along
the water main alignment where standing water was seen and
has occurred for a long time, based on the differences
between the vegetation in those areas vs. the surrounding turf.
3. Visual inspection of the excavation slope indicated that
the water was coming from behind the excavation slope and
hydrostatic pressure was building up due to the flow of water.
20
If the source were groundwater, it would rise up and
hydrostatic pressure on either side of the slope would be
balanced.
4. DPW has previously indicated that the existing water
main pipes leak in the vicinity of the project. A leaky pipe or
valve could add up to thousands of gallons daily into the
surrounding soils. The water will travel along a path of least
resistance along the aggregate or backfill materials near the
valves and pipes, to the surface or to a location where the
pressure is less, such as the southwest comer of the project
where excavation was occurring.
(Id. at 112-13) The Timmons Group agreed with the above observations and
conclusions, and recommended that the water main be repaired; otherwise, the water
would continue to discharge through the cut slope, making it difficult to stabilize and
adversely affecting construction on the site (id. at 114-15). Haley & Aldrich also visited
the site and concluded:
[I]t is probable that a water line to the southwest of the
construction activities is leaking, which has contributed to
artificially elevated/perched groundwater in the southwest
comer of the site. Given the artificially elevated groundwater
levels relative to the proposed site grading, the construction
of the slope does not appear to be feasible under the
requirements of the current construction drawings and
specifications. Slope drainage options, such as underdrains
and chimney drains are likely required to construct the slope
if the groundwater level is not lowered.
(Id. at 116)
41. Tetra Tech's Mr. Allison testified that it made sense that the leaking valve,
even located at some distance from the project boundary, caused the soupy subgrade soils
south of Column Line 9. He noted that the leaking valve was at a higher elevation and
the water line ran directly toward the project site, so that the water from the leak would
naturally run downhill and travel through the pipe bed, which normally consists of a
trench filled with stone and/or gravel that water can travel freely through. (Tr. 1/338-41)
Mr. Allison also testified that he reviewed the solicitation and there was no mention of
the leaking valve (tr. 1/341 ).
42. At the 12 May 2011 progress meeting, Tetra Tech brought up the subject
of the leaking water in the southwest comer of the project. Present at the meeting
was COL Charles Schulze ofMDARNG. COL Schulze contacted DPW the same
21
morning and asked for their help in locating and fixing the water leak. (App. supp. R4,
tab 270) The leak was fixed by noon on 13 May 2011 (app. supp. R4, tabs 271-73). 15
Mr. Richard Bandyl 6 testified that he personally fixed it (tr. 3/179). As a result, the area
south of Column Line 9 began drying out toward the end of May and Tetra Tech was able
to resume work in early June (tr. 1/187). However, additional areas requiring undercut
and backfill continued to be encountered. On 26 August 2011, Tetra Tech notified CO
that it had discovered unsuitable soils during excavation to subgrade along the west
parking lot (S-168) (R4, tab 50). The condition required undercutting of approximately
one foot and backfilling with stone in an area of roughly 4,800 square feet (id.). Tetra
Tech advised it would be filing a claim for the extra work (id.).
43. Citing the testimony of Mr. Bandy, the government argues that the water in
the saturated, unsuitable soils that Tetra Tech encountered did not come from leaking
infrastructure. The government's proposed finding of fact (PFF) 120 states:
Mr. Bandy testified under oath that he personally and
repeatedly tested the water that appellant alleged was coming
from leaking infrastructure contemporaneous with [sic]
appellant's claims of encountering problems. Mr. Bandy
tested the water appellant claimed was leaking from
underground infrastructure for chlorine, fluoride, and its pH
value. His tests found no presence of chlorine or fluoride in
the water. The pH values came back so low that Mr. Bandy
concluded that the water he tested was not drinking water.
(Tr. 3/134-35; gov't br. at 27) Contrary to the government's proposed "fact," Mr. Bandy,
who was responsible for the maintenance of the underground water utilities at the project site,
testified that from September of 2009 to June of 2012, he was called out to the site five or six
different times (tr. 31128). Only one of these times involved testing water at a suspected leak
location, although there were multiple tests at that one location (tr. 3/133-34 ).
44. Mr. Bandy testified that he was called for some water that was coming out of
a bank, somewhere close to SL 096 (west side of new building addition north of Column
Line 9 (tr. 3/132; R4, tab 293). He also testified that the testing occurred toward the
end of construction (tr. 3/134). He tested the water half a dozen times but it did not
contain chlorine or fluoride, and had too low a pH to have come from site water utilities
(tr. 3/139-40). Upon further questioning, it became apparent that Mr. Bandy's water test
15
Although he was copied on the 13 May 2011 emails (app. supp. R4, tabs 271-73)
reporting that the leak had been fixed, the CO responded on 16 May to
a related request for information from Tetra Tech with this reiteration: "Once
again this issue has No Standing with contracting" (R4, tab 40).
16
Mr. Bandy at the time was the Chief of the Buildings and Structures Branch of the
Operations and Maintenance Division ofDPW at Aberdeen (tr. 31125).
22
was conducted in a different location and more than a year after Tetra Tech reported and
remediated the unsuitable soil conditions caused by the leaking valve and the leaking fire
hydrant:
Q Okay. So you're say [sic] that further east of the
berm area, the water was clear. Is that your recollection?
A Where I took my samples, we were getting clear
water. I could not sample rusty water like this.£ 171 I mean,
how was I, I couldn't, it's not going to turn purple when it has
chlorine in it. It's already red.
Q Okay. So you agree with the water coming, that's
being depicted at 309.13 and 309.14, is in fact rusty water.
A According to these pictures, yes, ma'am.
Q Okay. And can you --
A But now I don't know where that water came from. I
mean --
Q That water that was coming off the berm depicted
in 309.13 and 309.14 was never tested. Is that your
testimony?
A I could not test that rusty, red water. I have no way
to do that.
(Tr. 3/189-90)
JUDGE O'SULLIVAN: Okay. I have a couple of
questions, Mr. Bandy.
THE WITNESS: Yes, ma'am.
JUDGE O'SULLIVAN: The water test that you
conducted in the area of SL 096, which is obscured up there
right now but we --
THE WITNESS: Yes.
JUDGE O'SULLIVAN: Yes. So tell me again when
it was you conducted those tests.
THE WITNESS: I believe it was sometime towards
the end of the construction, when they were installing that
roadway. I think the hangar portion of that was pretty much
done.
JUDGE O'SULLIVAN: All right.
17
The rusty water is depicted in the photos that accompanied Tetra Tech's initial 18 April
2011 notification to CO Hall (finding 37; R4, tab 309).
23
THE WITNESS: It was towards the end of the
construction period. But what the exact timeframe was, I'm
not 100 percent sure.
JUDGE O'SULLIVAN: Okay. Can you approximate
a time period?
THE WITNESS: I would say it was probably the
spring of 2012 maybe.
JUDGE O'SULLIVAN: Okay. April, May 2012.
THE WITNESS: Yes.
JUDGE O'SULLIVAN: Maybe.
THE WITNESS: Somewhere in there.
(Tr. 3/200-01) It is thus clear from Mr. Bandy's own testimony that contrary to the
government's assertion, Mr. Bandy did not test water from any of the leaking
infrastructure that is at issue in this appeal.
45. The government also offered its expert, Mr. Weikel, for the proposition that a
water leak did not cause the unstable subgrade at the southwest corner of the project.
Mr. Weikel opined that his observation of the area in question in 2014 indicated that the
slope was not saturated and to his knowledge no repair work had been completed,
therefore the water encountered could not have been from a leak (app. supp. R4, tab 312,
iii! 44, 52). On cross-examination it became apparent that the government had not
informed him.that the leak had been repaired on 13 May 2011 (tr. 5/111-13).
46. Dr. Meehan, appellant's expert witness, testified that in his opinion the bad
soil conditions Tetra Tech encountered at the project site were caused by water from
numerous instances of leaking infrastructure (tr. 3/53).
4 7. Based on a preponderance of the evidence, the Board concludes that the
saturated and unstable subgrade soils Tetra Tech encountered in the southwest corner of
the project were caused by water from leaking infrastructure which was not disclosed to
Tetra Tech or any of the bidders by the government in the solicitation documents.
Perforated Storm Drainage Pipes
48. One of the issues discussed at the 18 February 2011 meeting, in addition to
the soils south of Column Line 9 and the leaking fire hydrant, was a perforated storm
drain going from the southeast corner of the airfield to the northeast, running underneath
the proposed concrete apron and taxiway. Mr. Conologue, Tetra Tech's project
superintendent, testified that he discovered the first perforated pipe when, during
excavation in the area, the soils could not pass a proof roll test and were determined to be
unsuitable. As part of his investigation of the cause of the soil saturation, he opened the
grate and visually inspected the pipe with a flashlight. (Supp. R4, tab 329 at 71-72)
After digging test pits that confirmed the pipe was indeed perforated, he notified CO Hall
24
of that fact by email on IO February 2011. Color photos of the pipes were attached to the
email. (App. supp. R4, tabs 243, 309.15-17) 18 The same day, after CO Hall inquired
whether there were holes in the pipe or just bad rust, POZ Environmental, the
government's quality assurance (QA) contractor, reported to CO Hall:
Ed, I just looked down the pipe from the inlet by the asphalt,
fligh[t] area. The pipe runs north under the asphalt and south
to the pond. North under the asphalt is a coorigated [sic] pipe
with concrete on the inside of the pipe to make it smooth with
no perforation as far as I could see. South from the inlet to
the pond is a [corrugated] pipe that is perforated, on top of
being in poor shape and rusted, as far down as I could see.
There are holes drilled throught [sic] the pipe to the south of
the asphalt with no concrete in the pipe.
(App. supp. R4, tab 243)
49. On 23 February 2011, Tetra Tech sent the CO a follow-up letter on the subject
(S-086), to which it attached a draft letter from Urban Engineers explaining why the
perforated pipe was a concern (R4, tab 18). Rather than carrying storm water away from
the site, the perforated pipe was contributing to the saturation of the site, a particularly
bad idea underneath the to-be-constructed concrete apron and taxiway where, even if
Tetra Tech were able to stabilize the subbase to allow for airfield pavement construction,
the continued saturation would shorten the lifespan of the subbase and adversely affect
the pavement above (id. at 2-3). The engineers recommended replacing the pipe within
the limits of work with solid piping lined with polyethylene as well as undercutting the
existing unsuitable subgrade and replacing it with suitable materials (id.).
50. Shortly thereafter, during excavation on 29 March 2011 to install a structure
atop another existing 21" storm drainage pipe, the pipe was discovered to be perforated
and discharging water beginning adjacent to the east wall of the existing hangar building
and running east underneath the area where the new concrete apron was to be constructed.
Tetra Tech notified the CO of its discovery in a letter dated 31 March 2011 (S-104).
(R4, tab 26) This was the second storm drainage pipe discovered to be perforated and, as
before, Tetra Tech recommended that the pipe not be left in place. Tetra Tech noted that
at the time it submitted its cost proposal, it believed the leaking fire hydrant caused the
poor soils in the area, but it was apparent that the storm drain, which collected runoff
from the flight line's concrete and asphalt surfaces, was discharging storm water into the
subgrade and was contributing to the poor soils. It planned to begin remediation along the
east side of the hangar beginning the week of 4 April 2011 and requested prompt direction
18
The photos depict an old, rusted, large diameter corrugated metal pipe with a solid top
and a bottom that had holes drilled in it to allow stormwater to infiltrate subsurface
soils beneath the pipe (app. supp. R4, tab 309 at 15-17; tr. 1/73).
25
on how to handle the perforated pipe. (Id.) On 8 April 2011, Tetra Tech wrote the CO
again to inform him that upon further inspection the pipe was found to contain trapped
sediment material which could adversely affect the site permit from the MDE (S-110)
(R4, tab 28). It requested that the CO investigate along with DPW Environmental and
APO (id.).
51. On 11 April 2011, despite having received confirmation of the existence of
perforated pipe in response to his own inquiry from POZ, the government's QA firm,
CO Hall responded to Tetra Tech's letter regarding the second perforated pipe with the
following email:
Am returning letter s.110. The government Does Not have a
perforated pipe. The government has Storm pipe down at the
Weide Airfield but there does not exist a perforated pipe.
If Tetra Tech is submitted [sic] a letter please need to clarify
what you are submitting the letter for. Believe it was many
Years ago that a Storm pipe was installed at the Airfield and
that Storm pipe installed was never perforated. The Storm pipe
installed was installed with weep holes to gather ground water.
(R4, tab 30)
52. On 7 June 2011, Tetra Tech followed up on its 23 February 2011 notification to
CO Hall regarding the first discovered perforated pipe (S-146) (R4, tab 41). In its letter,
Tetra Tech noted it had received no direction from the CO to stop its remediation work
since that time, and updated the CO on the remediation work it was performing to stabilize
the subgrade under the to-be-constructed east concrete mooring pad and asphalt taxiway.
Based on testing by Haley & Aldrich, it was determined that soil cementing rather than
undercutting followed by geogrid fabric could be used to achieve a satisfactory degree of
stabilization at a lesser cost. (Id.) Therefore, Tetra Tech informed CO Hall that it would
be proceeding accordingly and that the estimated additional direct cost would be $85,000
(id.). On the next day, Tetra Tech sent the CO a list of priority items awaiting direction
from the CO to be discussed at the next progress meeting. At the top of the list was the
perforated pipe at the east concrete mooring pad and asphalt taxiway. Tetra Tech noted
that it needed a "working plan with Schedule from USPFO" and a "stop work order for
work above and surrounding the drainage pipe to be replaced." (R4, tab 42) The next
morning Tetra Tech received the following email from CO Hall: "Mr. Lipscomp, [sic] As
Contracting has stated couple times previously there exists No Perforated Pipe Thus the
item mentioned On the list Will Not be Entertained" (R4, tab 43).
53. On 20 June 2011, Tetra Tech notified CO Hall that an adjacent area under the
east concrete apron next to the east side of the building would be stabilized with soil
26
cement at an additional direct cost of approximately $29,000 (S-149) (R4, tab 44). To
this notice, CO Hall responded via email:
Mr. Lipscomp, [sic]
The government has denied that different site conditions
exist. This was cited in previous letters to Tetra tech
Facilities Construction.
Therefore any cost that Tetra Tech states will be the burden of
Tetra Tech Facilities Construction.
The government reserves the right to examine the Fraudulent
Claims Section in the FAR.
(R4, tab 45) Tetra Tech viewed this communication as a threat (tr. 11193). Mr. Lipscomb
responded the same morning:
Ed, TTFC's letters are issued to document and notify USPFO
of current events concerning differing site conditions we have
encountered. We believe we are entitled to be compensated
for these conditions under the contract. We therefore want to
make sure USPFO has the same information in a timely
manner that we have in order to verify and examine these
conditions.
(R4, tab 46) To this, CO Hall responded, also the same morning: "Rick, This has been
denied. Thus the contract officer will pursue the Fraudulent Claim process which may
have or will have Financial impact on Tetra Tech Facilities Construction." (R4, tab 4 7)
Tetra Tech viewed this as another threat, but did not stop giving notice to the government
(tr. 11196).
54. Effective 8 July 2011, CO Hitch issued Modification No. P00008 (Mod 8),
providing a priced contract line item number for replacement of the perforated storm
drain discovered and reported in February 2011 (R4, tab 49). Only the portion of the
perforated drain that would run under the concrete and asphalt runway to be constructed
by Tetra Tech was replaced. As COL Tracy explained, "if we did not replace that pipe
prior to it being paved and then a pad put over it, if it had to be replaced in the future,
we'd have to tear all that up and it would cost us a lot of money." (Tr. 2/272-73) The
remaining perforated drain piping was not replaced (tr. 11200).
55. On 22 September 2011 Tetra Tech discovered yet more saturated subgrade
soils when excavating for the north mooring pad and notified CO Hall by letter dated
26 September 2011 (S-178) (R4, tab 52). Its engineers (Haley & Aldrich) deemed the
subgrade unsuitable to support a concrete pad and recommended undercutting,
installation of geogrid fabric, and replacement with stone (id.). By this time, Tetra Tech
27
had paved over approximately 10,000 square yards (about two acres) of what had
theretofore had been open field, resulting in increased runoff into perforated storm drain
that had not been replaced, and which ran directly underneath the location of the north
mooring pad (tr. 1/201 ). Tetra Tech sent a follow-up letter (S-195) on 30 November
2011, reporting that it had performed the undercuts in the north mooring pad area from
15-19 November 2011 (R4, tab 54). Mr. Lipscomb testified that the area was stabilized
after the undercutting, but there was a period of rain that destabilized the area again,
requiring more undercutting before a suitable subgrade material could be installed. The
issues in this area were caused by the perforated drain pipe that allowed water from
runoff to saturate the area below grade and destabilize the subgrade soils. (Tr. 1/202-03)
56. The perforated pipes were shown on the site utility plan ( 197 4 drawings
included in the solicitation package) as storm drains with no indication that they were
perforated (app. supp. R4, tab 192; supp. R4, tab 329 at 69). Mr. Lipscomb testified that
Tetra Tech would not have included the existing storm drains in its SWPPP if it had
known they were perforated (tr. 1/71-74). Mr. Conologue, upon viewing a document
depicting a storm drain, would assume absent indications to the contrary that the pipe,
being for water transfer, was a solid pipe (supp. R4, tab 329 at 71). Dr. Meehan testified
that a geotechnical engineer would assume that stormwater drains on a drawing were
solid, absent an indication to the contrary (tr. 3/113-14). Drawings expressly indicating
that the storm drains in question are perforated, dated 8 October 1941, were first
produced by the government in discovery in this appeal (app. supp. R4, tab 190).
57. Although one section of the perforated storm drain first reported in February
of 2011 was replaced after Mod 8 issued in July 2011, it had in the meantime continued
to saturate the subgrade underlying the new concrete and asphalt (Far East Mooring Pad
and Asphalt Pavement) to be constructed by Tetra Tech, and the remaining perforated
sections continued to saturate the subgrade in other areas, including the North Transient
Pad, all of which required remediation either by undercut and backfill, or in less
severely affected areas, by means of soil cementing. The areas remediated are designated
SL 146, SL 155, SL 178, and SL 195 on the site map (app. supp. R4, tab 293). The
remediation methods employed are described in Tetra Tech letters S-146 (R4, tab 41 ),
S-155 (R4, tab 48), S-178 (R4, tab 52), and S-195 (R4, tab 54).
58. The second-discovered perforated storm drain, which was not replaced,
contributed to the saturated conditions encountered along the east side of the hangar,
designated as SL 149 and SL 146 on the site map (app. supp. R4, tab 293), the
remediation measures employed in this area consisted primarily of soil cementing, as
described in Tetra Tech letters S-149 (R4, tab 44), and S-146 (R4, tab 41).
28
Should Tetra Tech Have Expected Shallow Groundwater Due to a High Water Table or
Other Natural Causes?
The government's defenses against Tetra Tech's claim depend primarily on
establishing that Tetra Tech encountered, and should have expected to encounter, shallow
groundwater whatever the cause might be. We have already found that the Giles Report
did not warn of saturated soil, but told bidders they could expect stiff constructible soils
with close to optimum moisture content for compaction (finding 17). However, since the
government argues that Tetra Tech encountered shallow groundwater due to a high
natural water table or adverse weather, we make findings with regard to these contentions
below.
Natural Water Table
59. The Giles Report estimated water table depth at 7-11 feet below ground
(finding 5). The boring logs indicate that water was encountered 11 feet down at Boring
No. 1, no water was encountered at Boring No. 2 (terminated at 16 feet), water was
encountered 14.5 feet down at Boring No. 3, water was encountered 9.5 feet down at
Boring No. 4, perched water at 1.2 feet down was encountered at Boring No. 5, 19 and no
water was encountered at Boring No. 6 (terminated at 15 feet). Thus, the Giles Report
estimate of the location of the water table was a rather conservative projection from its
boring results. (R4, tabs 2, 74 at 503-08; tr. 3/34)
60. Haley & Aldrich agreed with Giles Engineering regarding the likely depth of
the water table at the site. Mr. Derrick Shelton, P.E., the geotechnical engineer who
oversaw Haley & Aldrich's geotechnical investigation, testified:
[I] knew that from a construction standpoint, for them to
encounter that true water table, they'd have to excavate their
excavations would have to be in the 10 to 15 foot range, and
we weren't expecting any excavations that deep -
Q Okay. Now had you believed that the water table
was one foot below ground, what type of construction
recommendations would you have made, sir? Would they
have been different than what you recommended in your
report?
A They would be significantly different. For water, if
the true water table was that shallow, we'd have to reevaluate
19
Boring No. 5 was in close proximity to the location of the leaking fire hydrant
discovered by Tetra Tech (gov't PFF ii 13; R4, tab 2 at 502, tab 70 at 527).
29
the foundation system that we put in. We'd have to
reevaluate how they would actually perform all the
excavations throughout the site. And that wasn't the case. In
our report we put some specific recommendations in there to
cover how they excavated. And we clearly said that you
might encounter some water in your deeper excavation that
you could control with limited specifics, small sumps.
Especially for utilities because utilities are usually the deeper
of the excavations onsite. So if it was a true high
groundwater table, we would have had to reevaluate our
entire report.
(Tr. 3/218-19)
61. Appellant's expert Dr. Meehan testified that, as opposed to perched water, the
natural water table is a continuous level of water at some elevation (tr. 3/25). If one were
to dig down into the water table itself, water would fill the hole up to the level of the
water table (tr. 3/26). Soils at the level of the water table cannot be described as "stiff''
(tr. 3/30). "Groundwater" is an inclusive term used to describe water in the ground,
whether it is beneath or above the elevation of the water table (tr. 3/28).
62. Appellant's witnesses testified that the problems with saturated soils
encountered south of Column Line 9 could not have been caused by cutting into the water
table because, after digging underneath the saturated soil, they found firm, stable, suitable
subsurface soil. Mr. Joseph Gray, Tetra Tech's quality control manager on the project,
testified:
Q Okay. Now what was your view as to whether or
not you cut into the water table?
A I did not think we hit the water table.
Q I would like for you to explain to the Court, sir,
why it was your belief that you all had not hit the water table.
A The water table, in my past experience, is usually
pretty uniform and consistent in elevation. When we put
wells into the ground, we put numerous wells at a site, and
then we go and measure the elevations. And they would, the
differences in the elevations would be in hundredths of a foot,
tenths of a foot at the most. We weren't hitting the water or
any kind of moist soil at the north end. Then we go a little bit
to the other end and now it's moist soil. So if it's down at the
south end, it should be up at the north end.
Q Okay. Now when you're, if you're excavating
based on your experience, and you cut into a water table,
what happens?
30
A The water, the excavation would fill with water,
either slowly or fastly, depending on the nature of the aquifer.
Q Okay. Now did that happen here?
A No.
Q And based on your experience, if you cut out, let's
say you hit the water table. And you cut out two to three feet
undercut, do you reach dry soil?
A No.
Q Why not?
A The water table's going to continue to come into the
excavation.
Q And were you, did Tetra Tech actually undercut in
some areas?
A We undercut in a lot of areas, yes.
Q Okay. So when you undercut and you took that bad
soil away, what would be below it?
A Well the way that we had to construct, we had to
undercut down to a firm soil that was suitable and then come
up from there. If we were in a water table situation we never
would have hit firm soil. Not in the water table anyway.
Q Right. Now would you, did you all encounter dry
or drier or firm or stiff soils below that undercutting?
A Yes. In the south end of the site, we were able to
dig through the soil that was unsuitable and get down to dry
soil that was suitable. And that's what we brought our stone
up off of.
Q Okay. Is that consistent with having hit a water
table, sir?
A No, it's not.
(Tr. 2/77-80) Tetra Tech's design manager, Mr. Allison, testified similarly:
Q Based upon what you saw, based upon your
experience, what is your view, as to whether or not Tetra
Tech had cut into the water table, sir?
A We did not believe it was the water table. We
didn't think we were anywhere close to the water table.
Q And what is the -- why do you [say] that? Explain
to the Court, why you think you all never hit the water table.
31
A Because the water would still be trying to achieve
its natural level, despite the excavation that went on, and you
don't see that there.
There were many holes we drilled out there that didn't
find water at all. Many of the Giles holes didn't even find
water.
Q Okay, now, Mr. Lipscomb testified about the
possible soils remediation methods. One was cementing.
One was doing an undercut of going in and cutting out two,
three, five feet, whatever it was of those bad soils, and that's
what was done.
What kind of remediation methods would have been
required, had Tetra Tech actually cut into the water table?
A I don't know that you could have just remediated it
on the spot. You would have had to change your whole
process.
Q Okay.
A But that was truly permanent water table.
Q Will soil cementing resolve cutting into a water
table?
A No.
Q Will cutting out the soil and just putting in new soil
remediate cutting into a water table, sir?
A No.
(Tr. 11296-98) Haley & Aldrich's Mr. Shelton agreed:
And what I recommended to Tetra Tech is, let's dig
some small test pits. Let's see how deep this problem is.
Does it extend 15 feet down or is this an isolated area? And
that's exactly what we did. And we realized it's the soft,
saturated zones typically were 24-inch, 36-inches thick. And
you remove the soupy material, the soft material, and there
was nice, firm ground beneath it. And coincidentally we
wrote recommendations on how to treat the soil. And that's
what the recommendation said, excavate 24 inches, maybe a
little bit deeper depending on how, what depth you find firm
soil.
Q But if Tetra Tech had hit the water table and then
undercut 2 feet, would that solve the problem of having hit
the water table?
A No. I mean, if you had hit the water table and you
excavated 2 feet, you'd have standing water in the bottom of
the excavation. And that's no[t] what we had.
32
Q Okay. Now there have been some assertions in this
proceeding, this litigation, I believe by the government's
expert that what Tetra Tech should have done, based upon the
soil borings is they should have known and they should have
implemented a site-wide dewatering plan for 6 to 8 months to
basically permanently lower the water table. What is your
view of that option, sir?
A That sounds like an option that you would perform
ifthe water table were truly one foot down, or very close to
the ground surface. Our site didn't have that, and it would
have not necessarily addressed the problem which we had
was isolated zones of soil at a particular depth that were just
soft and saturated.
(Tr. 3/222-24) Dr. Meehan concurred that the natural water table did not cause the soil
conditions encountered by Tetra Tech:
[Y]ou know if you look at the field evidence they excavate
out the muck and they don't see any ground water seeping in.
I talked about my bathtub example. If they take out that soil
the water is going to seep in and return to its natural
elevation. After they mucked out these holes okay, at the
bottom elevation things are firm and stable and that is what
they are basing their you know ground improvement options
off of from that point. There is no evidence of water coming
in there. There is no evidence of that ground water table
returning to its natural elevation seeping in and I think that is,
in addition to kind of the boring logs, that is a strong example
of field evidence where you look and you see and it's not
happening. That is a very strong piece of evidence.
(Tr. 3/44)
63. The government's expert witness, Mr. Weikel, stated that the water table
"could be" as high as one foot down based on the boring logs (tr. 5/134), but also
conceded that Tetra Tech did not encounter the natural water table when it excavated the
retention ponds (approximately I 0 feet down) or when it began excavating for the new
addition (tr. 5/125-26). The government did not present any credible evidence that the
soupy, unsuitable soils encountered by Tetra Tech during excavation were a result of
cutting into the natural water table.
64. The Board finds that (1) given the information supplied by the government in the
Giles Report, Tetra Tech had no reason to anticipate that it would encounter the natural water
33
table during excavation on the project; and (2) the soupy soils it encountered and remediated
during construction did not in fact result from cutting into the water table.
Adverse Weather
65. CO Hitch testified that it was her view that the Haley & Aldrich report had
warned that the contractor might encounter unsuitable soils such as it encountered south
of Column Line 9 "if we had bad weather." She further stated that at the time Tetra Tech
began excavation "we were into bad weather because they didn't get their permit in a
timely manner in order to start excavation in September. They ended up starting in
December." (Tr. 2/224) This appears to be at least part of her reasoning for denying
Tetra Tech's differing site conditions claim (tr. 2/223-24). The government also makes
this assertion in its brief, but cites to the Giles Report warning that "it might be necessary
to remove or stabilize the upper 6 to 12 inches (or more) of soil due to adverse weather,
which commonly occurs during late fall, winter, and early spring. At least some
over-excavation and/or stabilization of unstable soil should be expected if construction is
during or after adverse weather." (Gov't br. at 36) (citing R4, tab 70 at 523) The
government asserts, without citation to the record: "Appellant was largely responsible
for starting excavations late because it did not get the required dig permit from the
Maryland Department of the Environment" (gov't br. at 36 n.4).
66. The record does not support the government's assertion. Following extended
review (Tetra Tech first notified the government of the issue on 9 February 2010), Tetra
Tech's proposal to change from a spread-footer to a deep foundation system for the
building addition was finally approved and Mod 3 was issued on 30 September 2010
(finding 21 ). The government issued the NTP for construction to begin on 21 September
2010 (finding 22). Tetra Tech had submitted its SWPPP to the MDE in July 2010 and
received approval on 13 September 2010 (id. n.7). Thus, when the NTP issued, Tetra
Tech was ready to and did immediately begin site excavation for sediment and erosion
control, to include retention ponds, silt fences, and channels to direct runoff into the
retention ponds (finding 22). After this work was completed, Tetra Tech received a
discharge permit from the MDE on 30 November 2010 and began site excavation on
1 December 2010 (id.). However, despite a belief among the government witnesses that
there had been a delay in construction caused by Tetra Tech's failure to timely file its
Notice of Intent (NOI) 20 (tr. 4/41) (Mr. Schweizer, for instance, testified to "our
understanding" that Tetra Tech had not timely applied for the NOi (tr. 4/42)), no
government witness appeared to have personal knowledge of the matter and the
government has not cited to any other evidence that Tetra Tech could have begun site
excavation any earlier than it did. Mr. Lipscomb, on the other hand, had personal
knowledge and testified it was not true that excavation for the building had begun and
then was stopped because of the lack of a permit (tr. 1/229). He stated there may have
20
The Notice of Intent must be filed with the MDE to start the process of approving a
discharge permit (app. supp. R4, tab 218, Appendix A at 2).
34
been a "slight delay" between finishing the erosion control activities and receipt of the
permit from the MDE (tr. 11230).
67. In arguing that Tetra Tech encountered "adverse weather" affecting its
excavation activities, the government refers to this Giles Report warning:
Site soil is moisture sensitive and will become unstable when
exposed to adverse weather such as rain, snow, and freezing
temperatures. Therefore, it might be necessary to remove or
stabilize the upper 6 to 12 inches (or more) of soil due to
adverse weather, which commonly occurs during late fall,
winter, and early spring. At least some over-excavation
and/or stabilization of unstable soil should be expected if
construction is during or after adverse weather.
(Gov't br. at 46 (citing R4, tab 70 at 523)) The government argues that by "adverse
weather" the Giles Report is not referring to large amounts of precipitation, but rather
to any combination of snow, ice, and freezing temperatures common in late fall, winter,
and early spring (id.). It then cites pictures in the Rule 4 file that show that the site
experienced some snow and ice during the December 2010 excavations (gov't br. at 47,
PFF ~ 135). From this, the government concludes that Tetra Tech was warned by the
Giles Report that it could experience the same adverse weather conditions that actually
occurred (id. at 46-4 7).
68. We do not accept the government's premise because it is not well grounded in the
record. First, the Giles Report warns about the possibility of having to excavate primarily
the top 6 to 12 inches of soil due to adverse weather (although not ruling out it might be
necessary to go somewhat deeper) (R4, tab 70 at 523). This warning did not extend to the
subgrade, as far down as six to eight feet, which is where Tetra Tech encountered the
unsuitable, soupy soils (finding 23; tr. 1/218, 260). Second, the government has offered no
evidence that its claimed "adverse weather" had any causal connection to the unsuitable
soils encountered at subgrade. The evidence is that the precipitation that occurred in
December 2010 was "sparse" and had no effect whatsoever on excavation activities.
(Tr. 2/32-37) Indeed, as Haley & Aldrich noted in their January 2011 letter, the
precipitation level for October, November, and December of 20 I 0 was approximately
30% below the normal monthly average, and there were no significant precipitation events
leading up to the December excavation operations that encountered soupy soils (finding 25).
69. We find it unnecessary to determine an exact definition of "adverse weather"
for purposes of this appeal. We find that the unsuitable subgrade soils encountered by
Tetra Tech were not caused by weather of any sort and were not otherwise reasonably
foreseeable based on the information contained in the Giles Report.
35
The Unsuitable Soils Requiring Remediation Were Caused by Undisclosed Leaking
Infrastructure at the Project Site
70. Dr. Meehan testified that in his opinion the predominant cause of the
unsuitable subgrade soil conditions Tetra Tech encountered at the project site was the
"significant and numerous sources of leaking infrastructure" which were not revealed
in either the Giles or the Haley & Aldrich geotechnical reports (tr. 3/53-54). This
conclusion was based primarily on ( 1) the proximity of the saturated soils to the leaking
water source and/or the existence of a natural path for the water to follow from the source
of the leak to the saturated soils; and (2) the lack of any other plausible explanation for
the condition of the soils (tr. 3/44-47, 54-58). In his view, the soil conditions
encountered by Tetra Tech that required remediation were materially different from the
conditions reflected in the Giles Report (tr. 31117).
71. The Board finds that the unsuitable saturated subgrade soils that Tetra Tech
encountered and remediated at the project site were caused primarily by the undisclosed
leaking infrastructure at the project site, including the ( 1) leaking valve/water main
outside the LOD in the southwest comer of the project, (2) the two perforated storm
drains, and (3) the leaking fire hydrant. We find that any secondary, natural sources that
may have contributed water were insignificant in comparison.
Tetra Tech Completes the Contract
72. The contract completion date, as extended by Mod 3, was 5 January 2013
(finding 21). CO Hitch stated that the contract work was complete in May of 2012,
except for some change order work (tr. 2/108). COL Tracy testified that Tetra Tech
completed the project early under difficult circumstances (tr. 2/300).
The Request for Equitable Adjustment, Claim, and Final Decision
73. On 1 June 2012, Tetra Tech submitted its request for equitable adjustment
(REA) to the successor CO, Ms. Hitch. 21 Tetra Tech requested a total of $1,202,417 for
the extra cost of soil remediation due to Type 1 differing site conditions. (R4, tab 58 at 6
of 36) The enumerated differing site conditions included the leaking fire hydrant, the
leaking water valves, perforated pipe running under the new construction area that had
been identified as solid pipe in the drawings incorporated in the RFP, and perforated pipe
adjacent to the construction that had been identified as solid (id. at 3 of 36). The
enumerated cost elements were:
21
Mr. Hall was removed as CO by the USPFO, COL Tracy, toward the end of May 2012
(tr. 2/302-03).
36
WORK DIRECT OVERHEAD, TOTAL
PERFORMED COST PROFIT, BOND
Remove unsuitable $587,017.76 $115,157.29 $702, 175.05
soil and backfill
with stone
Soil Cement $229,322.56 $44,987.00 $274,309.56
Mud Mat for access $14,374.32 $2,819.86 $17,194.18
road stabilization
Geotechnical $79,103.60 $15,518.03 $94,621.63
consulting services
Miscellaneous $15,614.47 $3,063.14 $18,677.61
services
REA preparation $26,755.12 $36,871.02 $63,626.14
costs to 5114112
REA preparation $13,377.56 $18,435.51 $31,813.07
cost estimated to
complete
TOTAL $965,565.39 $236,851.84 $1,202,417 .23
(Id. at 6 of 36)
74. CO Hitch apparently rejected Tetra Tech's REA on the basis of Mod 3, the
contract modification that authorized and funded the change from a spread footer to a
deep pile foundation for the building addition (tr. 2/183). On 5 September 2012, Tetra
Tech resubmitted its REA as a claim (R4, tab 62). CO Hitch issued a final decision
denying the claim on 28 November 2012 (R4, tab 63). The contracting officer's final
decision (COFD) provides the following rationale:
The subject claim has been reviewed and denied. The claim
indicates that subsurface conditions encountered during
construction excavations by Tetra Tech differed from
conditions identified in the report by Tetra Tech's
geotechnical firm, Haley & Aldrich.
In reference to the Haley & Aldrich geotechnical
investigations, the report was submitted and resulted in
the issuance of Request for Proposal (RFP) # 11 for Deep
Foundation due to Differing Site Conditions. The resulting
modification P00003 was signed by both parties on
30 September 2010.
37
The report provided by Haley & Aldrich is not the
responsibility of the Government; therefore, the claim is
unsubstantiated.
(Id. at 1)
75. CO Hitch testified at trial and answered questions regarding the reasoning
underlying her COFD. Some representative excerpts follow:
Q Now I want to make sure I understand something
right, and I might have misunderstood you. But when the
government rejected Tetra Tech's REA and claim, it was
based on Modification 3. Correct?
A Yes, sir.
Q And a modification is a change to the contract, isn't
it?
A Yes, sir.
Q And so the government didn't say there was no
differing site condition. What the government said is that
differing site conditions was covered by Modification 3.
Correct?
A There is another paragraph that talks about, on that
modification, that is required by FAR.
Q We're talking about Modification 3.
A Mm-hmm.
Q We' re talking about --
A (simultaneous speaking) that's on all modifications.
Q We're talking about the waiver language. Correct?
A The claim of the, I forget, I'd have to look at the mod,
one of the mods to show you. It's a paragraph that, I think it's
like paragraph 4. It's in all the modifications that we do.
Q But in any event, I want to back up. I'm talking
about when you issued the denial of Tetra Tech's Claim.
A Okay.
Q Okay? At that time you based it upon Modification
3, a change to the contract that had already been executed.
Correct?
A Yes, sir.
Q You did not dispute that there was a differing site
condition. What you said is, that condition was covered by
Modification 3. Correct?
38
A Modification 3 covered those site conditions to
determine the deep foundation.
Q Right. But I may not be making myself clear.
A Okay.
Q But the point was that those conditions that led to
the claim were part of Modification 3 of the contract.
Correct?
A Based on the Haley & Aldrich report, yes.
Q ... And it appears when I'm hearing this, the
dispute's not whether it's a differing site condition. The
dispute is that we've already paid for it under Modification 3.
A Dispute is we didn't find it as a differing site
condition.
Q Excuse me?
A I believe the dispute is we didn't find it as a
differing site condition.
Q That's not what your denial of the claim says,
though, is it?
A That was the determination of Modification 3, is all
site conditions at that point in time. So it has not differed
from Modification 3.
(Tr. 2/206-09)
JUDGE O'SULLIVAN: All right. So to conclude,
your understanding is that the Haley & Aldrich report, in so
far as it addressed the likelihood of settlement in the soil, was
that the part that was relevant to the deep foundation issue?
THE WITNESS: The soil conditions of that report,
yes.
JUDGE O'SULLIVAN: And those would be the soil
conditions where the addition was going into the building.
THE WITNESS: Correct.
JUDGE O'SULLIVAN: Correct? Okay. And that
would have been, do you remember approximately, no, that's
okay. We don't need to ask you that. All right. So what in
your mind is the connection between the Haley & Aldrich
report as it relates to the deep foundation and Mod 3, which
was signed on 30 September 2010, and the soil conditions
that Tetra Tech encountered when it started to excavate in
December of 201 O?
39
THE WITNESS: My understanding is the Haley
& Aldrich report identified the soil conditions based on the
testings that they had done and the different sites that they
had taken. Okay? This was a team effort. And based on that
discussions, okay? We had agreed that we had issued
Modification 3. And then when the claim came in, there was,
the site, the soil conditions were stated and what could
happen in the Haley & Aldrich report. So it was no different
than what was occurring. In other words, Haley & Aldrich
had said these situations can occur and, therefore, it had not
changed since Haley & Aldrich had issued their report. They
identified conditions that could occur.
JUDGE O'SULLIVAN: Did the Haley & Aldrich
report identify the existence of unsuitable soils?
THE WITNESS: I don't know exactly whether it did
or not. It said that in certain conditions the soils could
become unsuitable. It did identify that.
JUDGE O'SULLIVAN: So it identified a possibility.
THE WITNESS: Yes.
JUDGE O'SULLIVAN: Which at that point had not
occurred.
THE WITNESS: Not at that time.
JUDGE O'SULLIVAN: So when in December 2010
Tetra Tech ran into unsuitable soils as they were excavating,
how could that have given rise to the proposal for adjustment
that led to Mod 3?
THE WITNESS: We looked at it as though the Haley
& Aldrich report had told them that they may run into those
conditions if we had bad weather. And we were into bad
weather because they didn't get their permit in a timely
manner in order to start excavation in September. They
ended up starting in December.
(Tr. 2/220-24)
This Appeal
76. Tetra Tech filed its notice of appeal from the COFD on 22 February 2013 and
its appeal was docketed as ASBCA No. 58568 by the Board on 25 February 2013.
Subsequently, the Board raised a question regarding the validity of the certification of
Tetra Tech's claim. The parties agreed to a stay of proceedings to allow Tetra Tech to
40
properly certify its claim and resubmit it to the CO. (Bd. corr., agreed mot. to stay dtd.
28 May 2013) The Board subsequently docketed appellant's appeal from the CO's
decision on the re-certified claim as ASBCA No. 58845 on 23 August 2013. The two
appeals were then consolidated.
DECISION
Tetra Tech claims entitlement to an equitable adjustment to compensate it for the
additional cost it incurred in remediating soils saturated by leaking infrastructure which,
it asserts, constituted a differing site condition under FAR 52.236-2(a)(l) and (2) (both
Type I and Type II). Tetra Tech also claims that the government's actions in this case
amounted to a breach of warranty, breach of its obligation to disclose information known
to it (leaking infrastructure, perforated storm drains) that was relevant to subsurface
conditions at the site, and breach of the implied duty of good faith and fair dealing.
The government contends that Tetra Tech has not established either a Type 1 or
Type 2 differing site condition existed because it should have known before it bid, from
the raw boring data contained in the Giles Report, that the site was saturated by
groundwater at very shallow depths. Having known that, the government continues,
Tetra Tech should have engaged in extensive dewatering before beginning excavation,
and it cannot recover for expense that it incurred because it failed to do so. The
government also disputes Tetra Tech's breach of warranty, superior knowledge, and
breach of implied duty arguments.
The elements of a Type I differing site condition, which FAR 52.236-2(a)(l) defines
as "subsurface or latent physical conditions at the site which differ materially from those
indicated in this contract," are: (1) the condition indicated in the contract differs materially
from those encountered during performance; (2) the conditions actually encountered were
reasonably unforeseeable based on all information available to the contractor at the time of
bidding; (3) the contractor reasonably relied upon its interpretation of the contract and
contract-related documents; and (4) the contractor was damaged as a result of the material
variation between expected and encountered conditions. Optimum Services, Inc., ASBCA
No. 58755, 15-1 BCA ~ 35,939 at 175,653-54 (citing Stuyvesant Dredging Co. v. United
States, 834 F.2d 1576, 1581 (Fed. Cir. 1987); and Comtrol, Inc. v. United States, 294 F.3d
1357, 1362 (Fed. Cir. 2002)). A contractor must prove these elements by a preponderance
of the evidence. Id.In this appeal it is undisputed that the contractor actually encountered a large
volume of saturated, unsuitable soils during excavation of the project site. It is also
undisputed that the only information on subsurface conditions that the government made
available to Tetra Tech and the other bidders before bidding was the Giles Report, which
was Appendix B to the Phase 2 solicitation and was incorporated into the contract upon
award (findings 2, 5). The parties disagree on what the Giles Report indicated about the
soils at the site.
41
The Contract Indicated that Soils at the Site Were Suitable for Construction
The Board has found that the Giles Report told bidders on the project to expect
medium to stiff constructible soils with close to optimum moisture for compaction
(finding 17). This finding is based on not only the characterization of the soils by the
government's geotechnical engineers (Giles) but also on the data contained in the boring
logs themselves (findings 5-16).
Giles conducted six test borings in all. No water was encountered during drilling
at Boring Nos. 2 (terminated at 16 feet down) and 6 (also terminated at 16 feet down)
(findings 9, 13). Water was encountered at 9 feet down at Boring No. 4, 11 feet down at
Boring No. 1, and 14.5 feet down at Boring No. 3 (findings 10, 11, 13). Perched water was
encountered 1.2 feet down at Boring No. 5, but thereafter no water was encountered down
to the 21-foot termination depth (finding 12). Based on this data, Giles conservatively
estimated the natural water table to be approximately 7 to 11 feet below ground at the test
borings (finding 6; tr. 3/34).
The water content of the soil samples recorded in the Giles boring logs ranged
from 7 to 17%. Above 10 feet, where most construction activities would take place, the
water content did not exceed 13%. The government's expert, Mr. Weikel, testified that
water content "in the high single digits to upper teens" for a silty clay, "in the mid-teens
to upper teens" for "dense silts and clays," and "in the mid-teens" for dense silty clay,
indicate that those materials are at or near saturation (findings 9-12). 22 However, his
assertions appear to be directly contradicted by the Haley & Aldrich geotechnical report
which determined that the optimum moisture contents for compaction at the site were
between 8.7% and 12.2%, very close to the actual moisture contents recorded by Giles
above 10 feet. (Finding 15)
Mr. Weikel also stated that the Giles Report described "soft, saturated unstable
soils" or "soils with high moisture content well above optimum and near the liquid limit"
(app. supp. R4, tab 314 at 2). At trial he testified that saturation levels directly correspond to
the liquid limit, which is the point at which soils begin to act like a liquid and are not
compactable (finding 14). However, that testimony was contradicted by Dr. Meehan, who
testified that saturation does not equate to liquid limit and that the latter can only be reliably
determined by a laboratory test called the Atterberg limits test (id.). Haley & Aldrich did
perform the Atterberg limits test on the samples from their test borings, and reported that the
liquid limits for the project soils ranged from 18% for sandy silt to 51 % for clay soil (id.).
None of the Giles test borings reported soil moisture content at these levels, nor did Giles
describe any soil it sampled as soft, saturated, or unstable.
22
Mr. Weikel did not cite to any authoritative source, either in his expert report or in his
testimony, for his statements equating percentage water content in the high single
digits or mid or upper teens with saturated soil.
42
Both geotechnical engineers (Dr. Meehan and Mr. Shelton) testified that the Giles
Report in its entirety, including the raw data in the boring logs, described generally stiff,
constructible soils with only occasional isolated anomalies such as the perched water at
Boring No. 5. Mr. Shelton of Haley & Aldrich testified that he was surprised when he
was called out to the site and observed the saturated soils that Tetra Tech began to
encounter during excavation, because "I did not see anything in our soil borings or the
Giles report that would lead me to believe that those soils would be that soft and
saturated, as what I observed when I visited the site." (Tr. 3/221-22) Dr. Meehan
testified that the soils in the Giles Report were "described as stiff quite frequently,
sometimes you would see dents were medium or firm there were a few instances where
things fell outside of that range but the predominant description of the in situ condition of
the soils was something like medium to stiff' (finding 8). There was not a lot of soft soil
in the Giles borings (id.), nor did the report or the boring data indicate saturated soils
(tr. 3/24-25). Dr. Meehan also observed that the Giles and Haley & Aldrich reports were
generally consistent and made similar recommendations with respect to constructibility
issues, with the major difference between the two being the foundation recommendations
for the building addition (tr. 3/24).
We think it necessary to also address the Haley & Aldrich report here briefly since
CO Hitch appeared to testify that Tetra Tech's claim was denied because the conditions
encountered by Tetra Tech during excavation were conditions that had already been
identified in the Haley & Aldrich report (and therefore were not differing site conditions):
And then when the claim came in, there was, the site, the soil
conditions were stated and what could happen in the Haley
& Aldrich report. So it was no different than what was
occurring. In other words, Haley & Aldrich had said these
situations can occur and, therefore, it had not changed since
Haley & Aldrich had issued their report. They identified
conditions that could occur.
(Finding 75) CO Hitch appeared to believe that the soil conditions indicated in the Haley
& Aldrich report that led to the recommendation for a deep foundation were the same as, or
related to, the soil conditions Tetra Tech encountered at subgrade that required remediation:
Q But the point was that those conditions that led to
the claim were part of Modification 3 of the contract.
Correct?
A Based on the Haley & Aldrich report, yes.
43
Q And it appears when I'm hearing this, the dispute's
not whether it's a differing site condition. The dispute is that
we've already paid for it under Modification 3.
A Dispute is we didn't find it as a differing site
condition.
Q Excuse me?
A I believe the dispute is we didn't find it as a
differing site condition.
Q That's not what your denial of the claim says,
though, is it?
A That was the determination of Modification 3, is all
site conditions at that point in time. So it has not differed
from Modification 3.
(Id.)
As we see it, there are arguably two components to this position. The first is that
the subgrade conditions requiring remediation were not differing site conditions because
they were identified by the Haley & Aldrich report. Both geotechnical engineers who
testified, one of whom was the author of the Haley & Aldrich report, emphatically refuted
this notion. But even if it were true, it would not defeat a claim for differing site
conditions because the issue is whether the conditions encountered differed materially
from the conditions indicated in the contract and upon which the contractor based its
bid, not from conditions discovered after contract award. The second component is that
Mod 3 foreclosed any additional compensation to Tetra Tech for conditions discovered
in December 2010 because those conditions were the same or similar to the soil
conditions that formed the basis for the modification. But, as Mr. Shelton testified, the
Haley & Aldrich recommendation for a deep foundation, which was accepted by Mod 3,
was based on its analysis of the settlement characteristics of the soils at depths of 20 to
30 feet below ground, and had nothing to do with the saturated soils closer to the surface
that were discovered during excavation (tr. 3/230-31). We conclude for these reasons
that neither the Haley & Aldrich report, nor Mod 3, foreclose Tetra Tech's claim.
During Excavation Tetra Tech Encountered a Large Quantity of Saturated Unsuitable
Soils Requiring Remediation
What conditions were actually encountered by the contractor is a question of fact.
Arundel Corp. v. United States, 515 F.2d 1116, 1123 (Ct. Cl. 1975). Tetra Tech
presented testimony from several witnesses and documentary evidence of soft, saturated,
"soupy" soils in several discrete areas encountered during excavation that required
undercutting and backfill or soil cementing in order to be able to proceed with the work
(findings 23-27, 32, 34-35, 38-42, 48-50, 52-53, 55). There is also ample evidence in the
record of leaking infrastructure either in close proximity to the problem soil or situated so
as to facilitate the transport of substantial quantities of water continuously to areas where
44
saturated soils were encountered (id., findings 70-71 ). Tetra Tech timely notified the
government of these conditions and afforded the government the opportunity to
investigate (findings 23-27, 32, 34-35, 38-42, 48-50, 52-53, 55). The government does
not dispute the actual conditions encountered by Tetra Tech, the timeliness of the
notifications, or the necessity of the remediation measures employed.
The Conditions Indicated in the Contract Differed Materially from Those Actually
Encountered
The government's defense relies on the proposition that the soft, soupy, saturated
soils encountered by Tetra Tech during excavation for the project did not materially
differ from the conditions disclosed by means of the Giles Report prior to bidding. Thus,
the government's geologist, Mr. Weikel, testified at length that the test borings in the
Giles Report depicted soils at or near saturation and very near, if not at, their liquid
limit (findings 9-12, 14). Mr. Weikel in his expert report relied on the data from Haley
& Aldrich Boring No. 8 and the Haley & Aldrich recommendation to design for
groundwater at one-foot below the surface to assume that the site had a very high natural
water table (one-foot below ground level) and opined that Tetra Tech should have
planned to institute a site-wide dewatering system well in advance of attempting
excavation (finding 16). The government does not contest that Tetra Tech encountered
leaking infrastructure but argues either that its effects were disclosed in the Giles Report
or that its contribution to conditions at the site was insignificant compared to the totality
of groundwater present from other sources.
The government's arguments are not supported by the preponderance of the
evidence. We have found as fact that the Giles Report told bidders to expect medium to
stiff constructible soils with close to ideal moisture content for compaction and warned
neither of saturated soupy soils nor leaking infrastructure (finding 17). We have also
found as fact that the saturated unsuitable soils were not caused by a high natural water
table or by precipitation, but by the undisclosed leaking infrastructure (findings 46-4 7,
57-58, 64, 68-69). Tetra Tech has carried its burden of proving that the conditions it
actually encountered differed materially from the conditions indicated in the contract.
The Actual Subsurface Conditions Were Not Reasonably Foreseeable
The contract contained a provision in General Conditions (3.04, Site Investigation)
obligating the contractor to satisfy itself as to the "character, quality and quantity of
surface and subsurface materials or obstacles to be encountered insofar as this
information is reasonably ascertainable from an inspection of the site, including all
exploratory work done by the Government and/or available from the using agency"
(finding 2). A companion clause, 3.05, Conditions Affecting the Work, required the
contractor to "ascertain the nature and location of the work and the general and local
conditions, which can affect the work or the cost thereof' (id.).
45
Tetra Tech conducted a site visit along with other bidders during which the
bidders were limited to visual observation-no invasive investigation was allowed. Tetra
Tech did not observe anything during the site visit that would have led it to question the
characterization of subsurface conditions contained in the Giles Report. (Finding 7) Nor
does the government argue that it could have or should have. Rather, the government
argues that the conditions actually encountered at the site were reasonably foreseeable
based on the contents of the Giles Report, with three variations: (1) the "very moist" soil
conditions Tetra Tech encountered were as reported by Giles, which characterized the
soil as "moist" or "moist to wet" (gov't br. at 45); (2) the Giles Report warned against the
effects of adverse weather which Tetra Tech encountered when it excavated in December
of2010 (id. at 46-47); and/or (3) the Giles Report data warned of soil at or near the liquid
limit, "dangerously close to saturation" so that a reasonable contractor would expect soil
instability (id. at 48). We have already found that ( 1) the saturated unsuitable soils
encountered by Tetra Tech differed materially from the medium to stiff constructible
soils described in the Giles Report; (2) the saturated soils requiring remediation were not
caused by weather but by leaking infrastructure that was not disclosed to the bidders,
including Tetra Tech; and (3) the moisture contents reported in the Giles Report did not
equate to saturated or unstable soil but to constructible soils with close to optimum
moisture content for compaction.
The government also argues that Tetra Tech withheld a key piece of information
by not informing the government that the Haley & Aldrich report boring results were
affected by a major snowstorm (of which certainly all government personnel on site were
well aware) until it ran into the saturated soils (gov't br. at 48-49). The relevance of this
line of argument to the foreseeability issue is not clear to us, but in any event we do not
find the assertion that Tetra Tech "withheld" key information to be supported by the
record. Finally, the government asserts that the soil conditions encountered by Tetra
Tech were "entirely foreseeable" given the site's close proximity to the Chesapeake Bay
and the fact that excavation commenced in the winter (id. at 49). This assertion is not
further explained or supported except by the statement that the boring logs contained in
the two geotechnical reports showed the presence of "high groundwater." The
government has not established any connection between either proximity to the
Chesapeake Bay, or the season, and the saturated subgrade conditions at the site.
Therefore, we do not further address this assertion. Tetra Tech has proven by a
preponderance of the evidence that the conditions it encountered at the project site were
not reasonably foreseeable.
Tetra Tech Reasonably Relied on the Contract Indications of Subsurface Conditions
To prevail on a differing site conditions claim, the contractor must have
reasonably relied on the contract representations as to subsurface conditions. H.B. Mac,
Inc. v. United States, 153 F.3d 1338, 1345 (Fed. Cir. 1998); Optimum Services,
15-1 BCA ii 35,939 at 175,657. Reliance is unreasonable when a contractor has
independent reason to know a representation may not be accurate. International
46
Technology Corp. v. Winter, 523 F.3d 1341, 1352 (Fed. Cir. 2008); Optimum Services,
15-1 BCA ii 35,939 at 175,657. The fact that representations as to subsurface conditions
are labeled as "for information only" or that the contract contains a requirement that the
contractor perform further subsurface investigation after award does not deprive a
contractor of the right to rely on the government's pre-contract representations. Metcalf
Constr. Co. v. United States, 742 F.3d 984, 995-96 (Fed. Cir. 2014).
The government concedes that all Tetra Tech had when preparing its proposal was
the Giles Report (gov't br. at 39). However, it argues that Tetra Tech had the opportunity to
"adjust its proposal" on the basis of the more detailed Haley & Aldrich report which the
contract required it to obtain for purposes of "planning, design, quantity and cost estimating,
and determining the const11Jction feasibility of the project" (gov't br. at 39-40). The
government does not explain how it thinks Tetra Tech could have "adjusted its proposal"
after contract award based on the Haley & Aldrich report, given Haley & Aldrich's
conclusion that its boring data was skewed by snowmelt from a significant snowfall and the
Giles data was more representative of the normal site conditions. Nor can this argument be
squared with the government's rejection of the REA that Tetra Tech submitted after it
discovered the unsuitable subgrade soils. Ultimately, the government's argument in this
regard devolves into a repetition of the propositions, which we have already rejected, that
both the Giles and Haley & Aldrich reports warned of soils "at or near saturation," and that
Tetra Tech's December 2010 excavation activities were affected by adverse weather (gov't
br. at 40-43). The government also observes that Tetra Tech lacked any prior experience
working at Aberdeen Edgewood, but fails to demonstrate the relevance of that fact to the
issues before us.
We find that Tetra Tech has established by a preponderance of the evidence that it
reasonably relied on the contract indications that the soils at the site were medium to stiff
constructible soils.
Tetra Tech Suffered Injury as a Result of the Differing Site Conditions
Tetra Tech has shown by a preponderance of the evidence that the need to
remediate unsuitable soils caused it unanticipated expense to undercut, remove the bad
soils and backfill with suitable fill material in the most severely affected areas, to soil
cement in other areas, to construct temporary access roads, and to incur other
unanticipated expenses including additional geotechnical consulting fees, and the costs of
REA preparation (findings 26, 29, 31-32, 34, 52-53, 55, 57-58, 70).
The government argues that Tetra Tech incurred the extra expense of soil
remediation not as the result of differing site conditions, but as a result of its failure to
heed the alleged warnings in the geotechnical reports and conduct comprehensive
dewatering prior to commencing construction (gov't br. at 50-53). Further, it states that a
"reasonably prudent contractor lacking experience working at Aberdeen Edgewood
should have planned for more systematic dewatering to be safe and to account for any
47
additional soil moisture in this specific geographic area" (id. at 51 ). No evidence of
record is cited to support this last statement. Indeed, there is no evidence in the record
that anyone actually involved in the project, government or contractor, ever opined to
Tetra Tech that systematic dewatering was called for prior to excavation. 23
The government's expert, Mr. Weikel, did opine that a site-wide dewatering plan
should have been instituted six to eight months prior to commencing construction
(tr. 51101, 107). However, Mr. Shelton of Haley & Aldrich testified that site-wide
dewatering would make sense only if the water table was very close to the ground
surface, which was not the case at the project site, and would not necessarily address the
conditions that Tetra Tech encountered, which were "isolated zones of soil at a particular
depth that were just soft and saturated" (finding 62).
We find that Tetra Tech has proved by a preponderance of the evidence that it was
injured by the differing site conditions. It is entitled to recover its additional costs of
performance caused by the Type I differing site conditions.
Alternate Grounds for Recovery
Tetra Tech advances alternate grounds for recovery: Type II differing site conditions,
breach of warranty of specifications, breach of contract by reason of failure to disclose
leaking infrastructure, and breach of implied duty of good faith and fair dealing. Tetra Tech
does not seek additional amounts under any of these alternate theories. (App. br. at 155-65)
Having found Tetra Tech entitled to its increased costs of performance due to Type I differing
site conditions, we do not address its alternate theories of recovery.
23
The sole exception could be CO Hall, who in his correspondence rejecting Tetra
Tech's REA alleged both that there had not been timely notification of the
differing site conditions and that Tetra Tech had not instituted a dewatering plan in
accordance with the Haley & Aldrich recommendation (finding 30). Tetra Tech in
response pointed out that the recommendation was for temporary dewatering
during excavation as needed, which was done, not dewatering as a means of
permanently enhancing the subgrade (finding 31 ).
48
CONCLUSION
The appeal is sustained and is hereby remanded to the parties for determination of
the quantum of adjustment.
Dated: 15 November 2016
Administrative Judge
Armed Services Board
of Contract Appeals
~~4zt
I concur
/"\' /'\ -·-
/ . .J--!--r-
---------
- /1>/ I i \_
MARK N. STEMPLER ~S~CKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
-Attachment
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA Nos. 58568, 58845, Appeals of
Tetra Tech Facilities Construction, LLC, rendered in conformance with the Board's
Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
49
ACRONYM GLOSSARY
APO-Aberdeen Proving Ground
CFMO-Construction Facilities Maintenance Officer
OPW-Oepartment of Public Works
LOO-limits of disturbance
MORANG-Maryland Army National Guard/Maryland Military Department
MDE-Maryland Department of the Environment
QA-quality assurance
SWPPP-Stormwater Pollution Prevention Plan
USPFO-U.S. Property and Fiscal Officer