Payne Hackenbracht & Sullivan
Dredging Decision - Differing Site Conditions
Appeal of J.A. LAPORTE, INC.ENG BCA No. 5252, 88-3 BCA 20,953
Contract No. DACW21-83-C-0090
June 30, 1988
OPINION BY ADMINISTRATIVE JUDGE PEACOCK
This is an appeal taken from a final decision of the Contracting Officer denying Appellant's claim for additional costs incurred in the performance of dredging in connection with the U.S. Navy Trident Submarine Base at Kings Bay, Georgia. The Appellant contends that it encountered differing site conditions in the form of rock and materials which behaved like rock in excavation, unsuitable materials for dike construction, conch shells, and clay, all of which allegedly could not have been anticipated from the plans and specifications for the project. Only entitlement is now before us for decision.
FINDINGS OF FACT
A. The Contract--What Was Indicated
1. Contract No. DACW21-83-C-0090, Maintenance and Trident Construction Dredging, U.S. Navy Submarine Base, Kings Bay, Georgia, was awarded to Appellant on September 30, 1983. (R4, E-1).
2. The contract originally estimated the dredging of approximately 3,286,678 cubic yards of material. (R. 4, E-4). That yardage was composed of two types of dredging, i.e., (1) construction dredging and (2) maintenance dredging. (R. 4, E-4). Construction dredging was to extend to a minimum depth of 44 feet mean low water (mlw), and allowed an additional 2 feet of overdepth dredging (R4, E-24 Technical Provisions, Section A2, Paragraph 6). Maintenance dredging was to be to a depth of 37 feet mean low water (mlw) with two feet of additional allowable overdepth. (R4, E-24, Technical Provisions, Section A2, Paragraph 6.2). At the time of award of this small business set aside contract, total estimated quantities were as follows:
(a) Construction dredging--2,656,678 cubic yards from station 29+250 to station 39+600, a distance of 10,350 ft. or approximately 2 miles. (R4, E-24, Unit Price Schedule).
(b) Maintenance dredging--630,000 cubic yards from station 37+000 to 43+000, a distance of 6,000 linear feet or approximately 1 mile. (R4, E-24, Unit Price Schedule).
The above quantities for construction and maintenance dreding included the required depth plus allowable overdepth and anticipated shoaling (R. 4, E-24, Unit Price Schedule, BF-7; GPF4). The contract clauses included Standard Form 23 A "Changes (1968 FEB)," and "Differing Site Conditions (1968 FEB)" clauses.
3. The project, as revised by Solicitation Amendment No. 0003, consisted of seven (7) base bid items as follows:
(1) Mobilization and Demobilization
(2) Construction Dreding, Unclassified
(Stations 37+000 to 29+250 including the Widener)
(estimated quantity 2,100,000 cubic yards)
(3) Water Quality Surveillance for Item No. 2
(4) Maintenance Dredging (Sta. 43+000 to 37+000)
(estimated quantity 630,000 cubic yards)
(5) Water Quality Surveillance for Item No. 4
(6) Removal of existing weirs and installation of new weirs
(fabrication, excavation and semi-compacted fill or backfill)
(7) Embankment
(Exh. A-1; Exh. A-2; Rule 4, Tab A-1-1).
4. In addition, an Additive No. I was solicited and awarded adding the following bid items:
(8) Construction Dredging, Unclassified (Station 37+000 to
39+600) (estimated quantity 556,678 cubic yards)
(9) Water Quality Surveillance for Item No. 8
5. In conjunction with the dredging requirements, Appellant was required to perform certain additional construction. That work consisted of the erection of dikes along the perimeter of the dredge material disposal area to hold material removed during contract performance. This dike work consisted of raising Mainside dikes by hydraulically pumping suitable material from the project area and depositing it atop the existing dikes. (R. 4, E-24, Technical Provisions, Section A2, Paragraph 5.1.2). The contract further required the removal and replacement of certain existing weirs used to discharge water from the disposal area (R. 4, E-24, Technical Provisions, Section A1, Paragraphs 1 and 2) and the subsequent grading and dressing of the Mainside dikes built under this contract (R. 4, E-24, Technical Provisions, Section B4, Paragraph 6). (GPF 5 & 6).
6. The contract was originally awarded in the amount of $4,879,000.00. (R. 4, E-1). During the course of construction, four modifications were issued increasing the contract amount to $5,367,962.50. (R. 4, E-7). Modification P001 required emergency dredging of maintenance material between Stations 41+000 and 42+000 near the Poseidon operating wharf. (R. 4, E-5). Modification P002 compensated Appellant for certain additional dredging undertaken in the tender area between Stations 38+750 and 43+000. (R. 4, E-6). Modification P003 expanded the scope of Modifications P001 to include maintenance dredging in a lower portion of the Poseidon operating area between Stations 39+600 and 43+000. (R. 4, E-7). Finally, Modification P004 deleted the Establishment of Turf-seeding work in the northern reach of the project area.
7. Special Provision, Paragraph 4.9 Subsurface Investigation states in part:
4.9.1 Channel. The logs of borings taken in the areas to be dredged are included in APPENDIX B of these specifications. (See Plate G-1, G-2, and G-3 for boring locations.)
Sieve analyses and Atterberg limits were run on selected overburden samples from borings in the base bid and additive areas. Field classifications may vary from laboratory classifications of the same soils. Tests on rock recovered from borings in the project area, including petrographic analyses and unconfined compressive tests, were also conducted.... Test results are included in APPENDIX C, RESULTS OF LABORATORY TESTS, of these specifications.
The material recovered from the core borings will be available for inspection.... Prospective bidders are strongly urged to examine the material and assure themselves that they have made the best possible evaluation of the subsurface conditions....
4.9.2 Subsurface Investigations--Disposal Area. Borings and Laboratory tests have been performed by the Government and other Engineering Firms on foundation materials at the project site. Borings and laboratory tests were performed for the original design of the subject disposal area. They are considered to be representative of conditions at that time, only. These investigations include drilling logs, results of laboratory sieve analysis, Atterberg limits, moisture content tests, compaction, direct shear, consolidation, permeability, and triaxial tests. Boring locations are shown on the plans. Logs of borings are included in Appendix B of the specifications. The results of soils laboratory tests are included in Appendix C. The Government guarantees these drilling logs and test results to be reasonably accurate; however, the Government assumes no responsibility for interpretation or deductions made by the Contractor. Soils are field classified (visual classification) in accordance with the Unified Soils Classification System. Field classifications may vary from laboratory classifications of the same soils. Laboratory identification of a sample takes precedence over the field identification where there is a conflict between the two identifications. The laboratory classifications, where made, are shown separately on the corresponding drilling log as the "Laboratory classification" and are abbreviated as "Lab Class." Bidders are urged to examine the data presented and to visit the site to observe existing conditions."
8. Technical Provision, Section A2, Paragraph 4, Character of Materials, states in pertinent part:
4. CHARACTER OF MATERIALS:
4.1 Construction Dredging.
The types of materials to be excavated in the base bid and additive areas are described on the boring logs (KB-Series) included in APPENDIX B of these specifications. The overburden deposits to be dredged, as indicated on the boring logs, consist of silty sands (SM), poorly graded sands (SP), clayey sands (SC), clayey sands with high liquid limits (SC-H), poorly graded silty sands (SP-SM), silty clayey sands (SM-SC) poorly graded clayey sand (SP-SC), silty gravel (GM), clayey gravel (GC), clays (CL and CH), silts (ML and MH), inorganic silty lean clay (ML-CL), and organic clay or silt of medium to high plasticity (OH). All soils are classified according to the Unified Soils Classification System. The surficial or uppermost deposits in the overburden are generally soft and in some areas are semiliquid. Sands often have varying amounts of shell fragments and range from loose to moderately dense, becoming most dense immediately above rock. Except when encountered near the surface, clays and silts are generally stiff to very stiff. Near the interface between the overburden and rock, the rock often degrades to a calcareous clayey gravel. (See APPENDIX C, RESULTS OF LABORATORY TESTS, for sieve analyses and Atterberg limits on selected overburden samples from the project area.)
The Government makes no representation as to the quantities of the various materials that make up the total quantity of unclassified dredging.
4.1.2 Although no rock layers were found to be above project depth at boring locations in the base bid and additive areas, some rock was encountered in the allowable overdepth and below. (See APPENDIX C for petrographic analyses and results of unconfined compressive strength tests on rock samples from borings in or near the project area.) Compressive strengths obtained for rock in the project area or immediately adjacent range from 105 psi to 885 psi. Results of previous such tests on samples taken from other projects at Kings Bay were significantly higher, ranging from 965 psi to 6385 psi. The occurrence of rock, its distribution, top elevation, thickness, hardness, and other characteristics are representations at the boring locations only. Variations in rock characteristics beyond each boring location are to be expected. In KB-Series logs, some variations exist in the method used to determine elevation of "Top of Rock." In many of the boring logs, "Top of Rock" is defined as the first continuous refusal to penetration by a standard splitspoon (1 3/8 inch I.D.). Using a 140-pound hammer falling 30 inches, refusal is considered to occur when two (2) consecutive drives result in 100 blows per foot or 50 blows per 0.5 foot unless the material is identified as a soil by the field geologist. At Kings Bay where a very dense soil is often located immediately above "Top of Rock," more than two (2) consecutive drives in 100/50 blow material may result. In such cases, splitspoon drilling is continued until the spoon cannot be advanced further by standard splitspoon drilling methods (Maximum of 100 blows per 0.0 feet). When this occurs, the point of outright splitspoon refusal is defined as "Top of Rock." For some borings at Kings Bay, a 2-inch I.D. seamless spoon sampler and a 300-pound hammer were used for sampling. "Top of Rock" on logs of these borings is identified as the level at which the seamless spoon sampler can be driven no further with repeated blows of the 300-pound hammer. On some logs, "Top of Rock" is established on the basis of a physical examination of the recovered core by the field geologist.
4.1.3 Rock types encountered in the base bid and additive areas included sandy and shelly limestones ("coquina"), fossiliferous dolomite, and partially indurated calcareous silts, sands, and clays ("marl"). The hard, dense rock present in all areas consist[s] of sandy dolomite and limestone and minor amounts of phosphate conglomerates. The term "Coquina," when included in these logs, is only used to denote a type of limestone containing a substantial amount of fossiliferous shell material. The term "coquina" as used in these specifications is not intended to imply that the rock is particularly soft and/or friable. Dredgeability of subsurface material at Kings Bay should be based on the terms in the rock description which specifically define the degree of hardness, such as "soft," "moderately hard," "hard," etc., and should not be based on assumed hardness as might be implied from the term "coquina."
4.2 Maintenance Dredging. The material to be removed is that which has accumulated as a result of shoaling since the channel was last dredged. Shoal material is anticipated to include silt passing a 200 mesh sieve, silt with fine sand, and debris. Bidders are expected to examine the site of the work and determine for themselves the character of the materials. Records of dredging of the existing channel are available ...
9. Amendment No. 1 to the Solicitation provided directions to Appellant as to the manner in which dredging was to be accomplished under this contract. (R. 4, E-24, Technical Provisions, Paragraph 2). Specifically, Appellant was directed to start at the extreme southern end of the project and dredge upstream until completion (R. 4, E-24, Technical Provisions, Paragraph 2; Tr. 1-170). The Government anticipated that the material to be encountered at the extreme southern end of the project would be more conducive to dike building as opposed to material in the upper reaches of the project (Tr. 1-170, 171; Exh. A-24). Specifically, 99.7% of the materials in the extreme southern end of the project were anticipated on average to be fine silty sands. (Id.). Given the anticipated fine quality of the sand, the Government, by the solicitation amendment, directed that potential bidders base their bid on starting at the lower end of the project, and moving northward while building dikes with the material dredged (R. 4, E-24, Technical Provisions, Paragraph 2). (GPF37).
10. The "claim area" involved in this dispute is the area from the south end of the project, i.e., Station 29+250 to approximately Station 37+000. Numerous contract borings were drilled in this general area. The parties' positions in this appeal primarily are based upon their interpretation of what these borings reasonably indicated to bidders. In all, 43 contract borings were taken. The Board considers that 30 of the borings are most relevant to the issues involved in this appeal. Those 30 borings (without KB prefix) are grouped into the following categories:
1. Eight borings in the center of the channel outside the "Widener" strip between Stations 30+000 and 36+000, i.e., (from south to north) Borings: 103, 68, 70, 72, 74, 8, 76, and 78 (referenced sometimes hereinafter as the Mid-Channel Borings).
2. Seven borings in the "Widener" strip on the Southwest end of the project between approximately Station 29+400 and about Station 32+500, i.e., Borings (from south to north) 146, 165, 147, 148, 150, 124 and 122 (referenced sometimes collectively hereinafter as the Widener-strip Borings).
3. Nine borings on the east slope of the channel below approximately Station 37+000, i.e., Borings (from south to north) 102, 104, 69, 71, 73, 75, 77, 161, and 208 9 (sometimes collectively referenced as the East Slope Borings).
4. Three borings on the west slope of the channel north of the Widener strip between approximately Stations 32+900 and 35+500, i.e., Borings (from south to north) 11, 12, and 207 (sometimes collectively referenced as the Northwest Slope borings).
5. Three borings between Station 36+000 and 37+500, i.e., Borings (from south to north) 214, 15, and 212 (or sometimes the North Mid-Channel Borings).
Pertinent portions of these borings are summarized below.
11. The following contract explanations and descriptions accompanied the Boring logs:
Explanation of Soil and Rock Descriptive Terms
These explanations are intended to clarify terms as used in the soil and rock descriptions on the boring logs only in these specifications.
CementedSaid of sediments that have become, to some degree, consolidated through deposition or precipitation of minerals in the void space between sediment grains.
Dense"Dense" refers to rock and soils whose particles are massed or crowded closely together. In these boring logs, "well compact" or "compacted" is sometimes used synonymously.
FatSaid of cohesive soils with a liquid limit greater than 50, very plastic.
FriableSaid of rock that crumbles naturally or is easily broken, pulverized, or reduced to powder; also said of soils that, when moist, are easily crushed under gentle to moderate pressure (between thumb and forefinger). Coheres when pressed together.
GravelUsed as a term for rock fragments having a diameter in the range of 0.19 in. to 3.0 in.; generally used synonymously with "pebble".
InduratedSaid of sediments that have been hardened, to some degree, by cementation, heat, and/or pressure.
InterbeddedSaid of layers of sediment deposited between or alternating with other layers of a different character.
LayerGeneral term for any tabular body of rock or unconsolidated material, lying essentially parallel to the surface on which it was deposited, and more or less distinctly limited above and below and of no particular thickness.
LeanSaid of cohesive soils with a liquid limit of less than 50, slightly plastic.
Description of Rock Types
__________________________________________
These descriptions define the scope of rock names used on the logs in these specifications.
LimestoneA sedimentary rock consisting chiefly of calcium carbonate (CaCO3).
DolomiteA sedimentary rock, similar to limestone, consisting of calcium carbonate (CaCO3) and at least 50% calcium-magnesium carbonate (CaMg(CO3)).
CoquinaA type of limestone consisting chiefly of more or less cemented sorted shell fragments. In these boring logs, the term "coquina" refers only to the type of particles that make up the limestone and is not meant to imply any particular relative strength. Hardness of "coquina" should be evaluated on the basis of terms such as "hard", "moderately hard", and "soft", etc. that are included in the rock description.
SiltstoneA sedimentary rock consisting chiefly of indurated silt.
MudstoneA sedimentary rock consisting of indurated clay and silt in roughly equal amounts, generally massive and non-fissile.
MarlA sedimentary deposit consisting of semifriable calcareous clays and/or silts and calcium carbonate; may also contain some fine sand and shell fragments.
Terms Used to Describe Rock Hardness
__________________________________________
Very HardCannot be scratched with a knife ("high hardness").
HardDifficult to scratch with a knife.
Moderately Can be scratched with a knife easily but cannot Hardbe scratched with a fingernail ("moderate hardness", "medium hardness").
SoftCan be scratched with a fingernail.
Very SoftEasily breaks into "soil like" material.
LensA thin layer, distinctly different from and separating two other layers of material. Its lateral extent is generally many times greater than its thickness. In the boring logs in these specifications, it is generally synonymous with "seam".
LithifiedSaid of sediment that has been converted, to some degree, from unconsolidated material into coherent rock.
MassiveSaid of sediment that occurs in very thick, homogeneous layers; sediment that is, or appears to be, without internal structure.
MinorAs used in the logs in these specifications, "minor" means "a small amount of" the indicated material.
PebbleUsed as a term for rock fragments having a diameter in the range of 4.0 to 64.0 mm; generally used synonymously with "gravel".
PlasticSaid of a material which can continuously and permanently deform without rupture. Material exhibiting "plastic" behavior is said to have "plasticity" of varying degrees.
SeamIn the boring logs of these specifications, "seam" is used synonymously with "lens".
RubbleRock fragments, coarser than sand, broken from larger masses, usually by physical forces.
Description of Soil Types
__________________________________________
Soil descriptions are in accordance with the Unified Soil Classification System.
Consistency for Cohesive Soils
__________________________________________
SoftEasily penetrated several inches by thumb. Unconfined compressive strength less than 0.5 Ton/sq. ft. ("very soft").
Medium StiffPenetrated several inches by thumb with moderate effort. Unconfined compressive strength from 0.5 to 1.0 Ton/sq. ft. ("firm").
StiffReadily indented by thumb, but penetrated only with great effort. Unconfined compressive strength from 1.0 to 2.0 Tons/sq. ft.
Very StiffReadily indented by thumbnail. Unconfined compressive strength from 2.0 to 4.0 Tons/sq. ft.
HardIndented with difficulty by thumbnail. Unconfined compressive strength greater than 4.0 Tons/sq. ft.
12. The plans and specifications represented that no rock layers were found above project depth (44 ft.) at the location of the base bid and additive areas, and that some rock was encountered in the allowable overdepth and below. The contract borings were intended primarily to describe the materials sampled and to indicate the "top of rock" at each boring location. Various methods were used to determine the "top of rock," as follows:
(a) "... first continuous refusal to penetration by a standard splitspoon (1 3/8 inch I.D.). Using a 140-pound hammer falling 30 inches, refusal is considered to occur when two (2) consecutive drives result in 100 blows per foot or 50 blows per 0.5 foot, unless the material is identified as a soil by the field geologist." (Emphasis added).
(b) "At Kings Bay where a very dense soil is often located immediately above 'Top of Rock' more than two (2) consecutive drives in 100/50 blow material may result. In such cases, splitspoon drilling is continued until the spoon cannot be advanced further by standard splitspoon drilling methods (maximum of 100 blows per 0.0 feet). When this occurs, the point of outright splitspoon refusal is defined as 'Top of Rock'."
(c) "For some borings at Kings Bay, a 2-inch I.D. seamless spoon sampler and a 300-pound hammer were used for sampling. 'Top of Rock' on logs of these borings is identified as the level at which the seamless spoon sampler can be driven no further with repeated blows of the 300-pound hammer."
(d) "On some logs, 'Top of Rock' is established on the basis of physical examination of the recovered core by the field geologist."
(Rule 4, Tab E-4, para. 4.1.2; Exh. A-48, pp. 19-20; APF 10).
Mid-Channel Borings
13. None of the Drilling logs for any of the eight Mid-Channel Borings contains blow-count data. All eight borings were drilled during the period approximately from March to July, 1977. The approximate location of each of the Mid-Channel Borings, along with its "Classification of Materials" description were as follows at the indicated elevations (in feet) from "Top of Hole" to "Top of Rock."
a. Boring 103: Station 30+000
Elevation Materials
____________________
23.4 to 28.4SP--Sand, fine to medium grained, dark gray w/trace of shell
____________________
28.4 to 45.4SM--Sand, silty, fine, light gray from 34.4' dark gray to brown
____________________
45.4 Top of RockLimestone--fractured, medium hard, gray
(ADDITIONAL TABULAR INFORMATION NOT SHOWN)
Widener Strip Borings
14. The "Widener Strip" at the extreme southwest end of the project was a very narrow triangular area comprising a minor (less than 5%) portion of the total project area. The longest side of the triangle, opposite an obtuse angle of approximately 150, degrees extended from about Station 29+200 to 32+500. Each of the seven borings in the "Widener Strip" contained blow-count information.
The date and approximate stationing of each of the "Widener Strip" borings, along with the log's field "Classifications of Materials" and blow count information at the indicated elevations (in feet) from "Bottom of Sound" to "Top of Rock" were as follows:
(ADDITIONAL TABULAR INFORMATION NOT SHOWN)
East Slope Borings
15. Of the nine pertinent East slope borings, only two (i.e., Borings 161 and 208) contained blow-count data. Borings 161 and 208 were drilled in January and March 1983, respectively. The remaining seven borings were drilled in June and July 1977 without recording blow count information. The approximate location of each of the East Slope Borings, along with its "Classification of Materials" description and available blow count data (Borings 161 and 208), were as follows at the indicated elevations (in feet) from "Top of Hole" (or "Bottom of Sound") to "Top of Rock" (or "Bottom of Hole").
(ADDITIONAL TABULAR INFORMATION NOT SHOWN)
Northwest Slope Borings
16. Two of the Northwest Slope Borings (i.e., Borings 122 and 207) contained blow count data. The date, elevations, approximate Station, "Classification of Materials" description and available blow count data recorded on the logs or each of the four Northwest Slope borings were as follows:
(ADDITIONAL TABULAR INFORMATION NOT SHOWN)
17. Two of the three North Mid-Channel Boring logs (i.e., Borings 213 and 212) contained blow-count information. The data, elevations, approximate station, "Classification of Materials" description and available blow-count data recorded on the logs of each of these three borings were as follows.
(ADDITIONAL TABULAR INFORMATION NOT SHOWN)
18. The boring performed by the Corps in 1977 was not logged by a geologist, but rather by a civil engineer, and the sampling was performed using a non-standard technique (2-inch diameter seamless spoon sampler driven in 5 foot lengths). (Tr. 3-163-164; 7-146; 7-262-263). Blow count data were not set forth in the logs of the 1977 borings due to the use of this non-standard technique. There was only one indication in the 1977 boring logs of rock in the claim area. That indication was the reference to the existence of six-tenths of a foot of limestone above the allowable overdepth of 46 in boring KB-103. (Exh. A-95, p. 15). The materials above allowable overdepth were classified as soil with no indications of cementation, induration, lithification or other properties which would be indicative of rock or "hard," "rock-like" materials. (Exh. A-95, pp. 6-15; Exh. A-48 at 21-22, 28-33; Exh. A-94 at 29-30).
19. Appellant's expert, Mr. John Sawyer, testified that each boring furnished in the solicitation had a "zone of influence" from which the extent of the materials described could be estimated. (Tr. 2-275-277; Exh. A-4). He further testified that this was a method commonly used by dredgers and engineers to estimate the quantities and character of materials to be excavated. (Exh. A-40, p. 7; Tr. 2-318). An exhibit prepared by Mr. Sawyer depicts a "zone of influence" for each contract boring. No rock was shown at any point in the project within the required dredging prism of 44 ft, and only a small area of rock was indicated in the allowable overdepth between 44 and 46 ft. (at elevation 45.4) in the vicinity of Station 30+000 based upon the zone of influence of Boring KB-103. The only other boring which showed rock in the allowable overdepth, Boring KB-25, was near Station 30+000 and was almost two thousand feet north of the claim area. (Exh. A-4; Exh. A-48, pp. 19-20; APF 32). The extent, i.e., boundaries, of the "zones of influence" plotted by Mr. Sawyer for each boring is unchallenged by the Government.
B. Appellant's Bid; The Government Estimate and Expert Testimony on Contract Indications
20. Prior to submitting its bid, the Appellant participated in a joint effort among interested bidders to "wash probe" the project site. The purpose of the wash probes was to verify the representation in the plans and specifications that there was no rock above project depth (44 ft.). (Tr. 1-151-153; 2-12, 2-333-334). After the industry probing survey, Appellant undertook a second probing survey at its own cost. (Tr. 3-98). The Appellant found nothing to indicate rock above project depth as a result of the probing program and concluded, as it had after reviewing the plans and specifications, that materials consisting of fine silty sand could be expected on the project. (Tr. 1-44-45; 1-77-78; 3-99; APF 18, 22; GPF 25).
21. Because its review and interpretation of the plans and specifications (including boring logs, samples and blow count data) indicated that the project required removal of soil with favorable excavation qualities, Appellant further concluded that the project was suited for its equipment. (Tr. 1-44-45, 77-8, 98-101; 2-19-27). It was the Appellant's policy not to bid any project which required the dredging of rock. (Tr. 1-133-134; APFs 23, 24). Assuming that the material in the allowable overdepth was the same as that anticipated in the required dredging prism, it was Appellant's intent to dredge the material in the allowable overdepth, as well. (Tr. 2-199, 201). Because the boring logs did not indicate the presence of rock within project depth, Appellant believed that the project was within the capabilities of the ARLINGTON, a dredge which had not been designed to excavate rock. (Tr. 3-249-252). Thus, Appellant intended to avoid the removal of rock if it was encountered in the allowable overdepth. (Tr. 3-51-52).
22. After concluding that the project required the dredging of material classified as soils in the form of sand and silty sand, the Appellant prepared a pre-bid estimate based upon production in materials of the types anticipated. The Appellant estimated that it would dredge the first 1,000,000 cubic yards (starting at Station 29+250 and working northward to Station 32+500) of new work at the rate of 720 cubic yards per hour during a twenty hour day of operation, and that the next 1,100,000 cubic yards (Station 32+500 to 37+000) of new work would be dredged at the rate of 1,000 cubic yards per hour during a twenty hour day of operation. (Tr. 1-176-178; APF 68). Appellant, inter alia, took into account the historical information it acquired over the years as to how its equipment would perform in various materials. (Tr. 2-59; 2-65-68; APF 71).
23. Appellant bid $1 as the cubic yard unit price for both maintenance and construction dredging. (R4, E-4). Appellant's President, Mr. MacDonald, explained that since he believed that the construction dredging was a relatively fixed number of cubic yards, he submitted a bid which was somewhat lower than his estimate of the true cost of removing that material. (Tr. 1-159-160). The other parts of the project which involved removal of maintenance material led to a reverse strategy in which Mr. MacDonald billed a higher price than his anticipated cost because of his belief that the maintenance quantity could ultimately become larger (as a result of change orders to remove additional material, shoaling, etc.) thereby enabling the Appellant to earn a proportionately higher profit on additional maintenance work. (Tr. 1-160).
24. The Appellant's assessment of the material described in the plans and specifications was endorsed by a number of expert witnesses and Government personnel. Dr. Alfred J. Hendron, Jr., a Professor of Civil Engineering from the University of Illinois, and an expert in geotechnical engineering, based upon his review of the contract plans and specifications, stated his opinion "... that contractors could have expected that the materials to be dredged from above elevation 44 to consist of soils, not rock." (Exh. A-95, p. 4; APF 25). The Government "is in complete agreement with that characterization." (Government Response to APF 25).
25. Dr. James Mahar, an engineering geologist with a Ph.D. from the University of Illinois, stated that based on his examination of the boring logs it was his expert opinion that the Appellant's interpretation that the materials described were sand and silt was reasonable. (Tr. 3-169-170). The Board accepted Dr. Mahar's testimony as that of an expert in engineering geology, and the Respondent did not subject his testimony to cross examination. (Tr. 3-182; APF 27). "The Government agrees with Dr. Mahar's interpretation]. Materials described and encountered on this job were, in fact, sand and silt (Government Exhibit G-2, Titcomb, p. 14 through 16)." (Government Response to APF 27).
26. Lewis Caccese, an expert with forty-five years experience in dredging and marine construction, and the former Chief of the Operations Division of the Corps of Engineers' Philadelphia District (1954-1978), testified that the material represented was sand which could be productively excavated by hydraulic dredge. (Tr. 3-218-22; Exh. A-45 p. 12). Mr. Caccese was responsible for over five hundred million cubic yards of dredging during his tenure with the Corps of Engineers (Exh. A-45, p. 8), and the Board accepted his testimony as that of an expert in dredging. (Tr. 3-227). Mr. Caccese was not cross examined by the Respondent. (Tr. 3-226; APF 28).
27. Robert Jantzen, a mechanical engineer with extensive experience in the design and operation of dredging equipment, and the designer of the Dredge ARLINGTON which was used by the Appellant on the project, testified that it was his expert opinion that the specifications presented a project requiring the removal of fine sand with some clay and silt. (Exh. A-47, p. 29). Mr. Jantzen is a graduate of the Massachusetts Institute of Technology and the President of Jantzen Engineering, Inc. He had designed and performed engineering work on hundreds of dredges and the Board accepted his testimony as that of an expert in dredges and dredging equipment. (Tr. 3-281; APF 31).
a. With respect to the purposes of "knives" installed in pumps, Mr. Jantzen testified (Exh. A-47, p. 21):
A. A knife in a pump is installed when trash, roots or grass, or rocks are being excavated. A knife is put into the eye of the impeller so that as the blades pass the knife they form a shearing action to cut off any of the trash or break up any of the rocks that may be encountered. It is sort of like making the dredge pump into a large Cuisinart machine.
b. Mr. Jantzen described the cutters installed on the Arlington as follows (Exh. A-47, ps. 23-4):
A. The cutter that is normally used is a Florida Machine six-bladed cutter referred to as a basket cutter with separate sheathes on the blades that can be changed from plain edge to serrated edge configuration depending on the type of material being removed. The dimensions of the cutter is approximately 63" in diameter and 54" long. LaPorte also used another type of cutter purchased during this contract in Kings Bay. It is an Ellicott rock cutter approximately 56" in diameter over the teeth and 35" long.
* * *
Q. What are the capabilities of the cutters on the dredge ARLINGTON?
a. The capability of a cutter is normally expressed in terms of cutting force and cutting force per inch. It is related to the peripheral speed of the cutter, that is, how fast the blades are rotating in the material, and the horsepower of the cutter motor. The cutting force per inch for the Florida Machine basket cutter, using 200 hp and the dimensions given, is about 19,000 lbs. at a peripheral speed of about 350 ft. per minute. This translates into a cutting force of about 350 lbs. per inch of blade. The similar figures for the Ellicott rock cutter comes out to a cutting force of 21,500 pounds with a peripheral speed of about 310 ft. per minute and a cutting force per inch of 614 lbs. per inch.
28. Appellant's expert, Mr. Jantzen, who designed the dredge Arlington, testified with regard to its capabilities. With regard to the ability of the ARLINGTON to dredge materials which had been sampled by blow counts above 50 per foot, he testified that "She could dredge some of it, but I'd sure want to go out and look at where it was over 50 blows to the foot." (Tr. 3-298). Mr. Jantzen also testified that if materials in excess of 50 blows per foot were described as "uncemented sands and silty sands," he would not be as "concerned about the Dredge ARLINGTON's ability to remove that material." (Tr. 3-301). He further stated, "It would make me breathe a little easier, but if I'm not getting a good definition of what is over 50 blows, then I would like to go out and look at it." (Tr. 3-301). In 50 to 100 blow count material, as blow count increases, the production rate of the dredge decreases. (Tr. 8-151, 159, 165-6, 168-9, 173-6; see also Exh. G-1).
29. Albert J. Depman, an engineering geologist who once served as the Chief of the Geology Section, U.S. Army Engineer District, Philadelphia (1948-1978), provided expert testimony that to elevation 46 on this job, 98% of the material should have been anticipated to be of a "soil-like consistency, namely, sand, silts and some clays." (Exh. A-94, p. 19; Tr. 8-11; APF 30).
30. Peter A. Lenzini, who testified for the Appellant as an expert in geotechnical engineering, is a registered professional civil engineer, and is a geotechnical consultant and visiting lecturer in civil engineering at the University of Illinois. He stated that according to his analysis of the specifications all of the materials above elevation 44 ft. could have been expected to consist of materials which were predominantly sand, silt or clayey silt with little or no plasticity, soils with some degree of cohesiveness consisting of clays, silty clay and clayey sands, and no rock. (Exh. A-48, p. 5). He further testified that the materials above elevation 46 should have also been anticipated to be 99.8 percent soils, with the addition of about 0.2 percent rock. (Exh. A-48, p. 5; Tr. 4-114; APF 29).
31. Mr. Earl Titcomb, Chief of the Savannah District's Geology Section, testified as an expert for the Government. Mr. Titcomb, concluded that the materials represented in plans and specifications were predominantly sand. (Exh. G-2-1, p. 14; Tr. 7-118-119). Dr. Peter Tarkoy, the Government's outside geotechnical expert, has an MS degree in Geology from the University of Tennessee and a Ph.D. from the University of Illinois in Civil Engineering. He testified that the materials represented in the plans and specifications were predominantly difficult-to-dredge, "hard" materials. (Exh. G-1-6; Tr. 8-27, 59-62, 65, 82).
32. Noting that some of the boring logs contained indications of high blow counts, Appellant's expert Dr. Hendron observed that "... high blow counts indicate very dense materials, they do not necessarily indicate rock. If the field geologist had seen any rock-like characteristics, it seems reasonable to assume that "top of rock" would have been placed at an elevation corresponding to the high blow counts." (Exh. A-95, p. 16). Appellant's expert, Mr. Lenzini, also reviewed the blow count information provided in the contract and noted that the lack of any references to cementation in the description of materials with high blow counts leaves no basis for a contractor to conclude reasonably that the material to be excavated is anything other than what was classified and described as a soil. (Tr. 4-108-109).
33. Cementation is a "very, very significant" engineering property because "it affects the fundamental properties of the material, its strength, ... which in turn effects its ability to be excavated, its compressibility as well as permeability." (Tr. 3-151; APF 44). Only one of the contract borings, Boring KB-25, contained a reference to cementation above project depth. This boring, which was near Station 38+500, was a considerable distance from the claim area. (Tr. 8-67-69). There were no other borings which contained references to cementation in material above project depth. (Tr. 8-69; APF 43).
34. The Government cost estimate for the work was $6,478,437.56. (R4, E-4). On July 18, 1983 (ten days before issuance of the solicitation), the Respondent's geology section provided the Government estimator with a breakdown of the quantities of sand, fines and rock, which could be anticipated to elevation 46 ft. (Rule 4, Tab E-10, p. A2-4 to A2-5; Exh. A-24; Exh. G-2-4). This breakdown of the relative percentages of material quantities concluded that all of the material within stations 29+250 to 37+0001 (the claim area) would be sand and fines to elevation 44, and that 0.8 percent rock could be anticpated from Stations 29+250 to 30+0001 between 44 and 46 feet. (Exh. A-24; Exh. G-2-4; Tr. 7-111; APF 55). Mr. Wade Seyle, who prepared the Government estimate, concluded that "the majority of material for the total project would average out to a silty sand." (Tr. 5-19-20). He further testified that he attempted to review the solicitation documents from the perspective of a bidder (Tr. 5-50), and stated that he based his conclusions upon the "Character of Materials description in the contract, the boring information that was available, my viewing of the core borings at the project site, and observations I made on the probing party conducted by the contractors prior to bidding." (Tr. 5-18-20). He further agreed that the contract documents did not portray any rock in the project above elevation 44 ft. (Tr. 6-73-74; APF 56).
35. The Government estimate was prepared according to the guidance furnished in ER 1110-2-1300, 15 February 1978 (Exh. A-44; Tr. 5-75), which by its terms was only to be used to estimate projects that are "free-flowing materials and must not be used for fat or stiff clay, heavy gravel, cobbles, or broken stone. For the latter type materials experience on similar type work should be used." (Emphasis added) (Exh. A-44, p. C-8). The material factor which the Government estimator applied to each section of the project was that of a free flowing material amounting to sand. (Exh. A-22; Tr. 3-215). The estimate included a material factor of 1.1 in the claim area, thereby indicating that the estimator believed these materials would be even more free flowing than the base material factor of 1.0. (Exh. A-44, p. C-8). The use of ER 1110-2-1300 (Exh. A-44) by the Government estimator was premised upon the factual conclusion that there was not a significant amount of rock or rock-like material in the project. (Tr. 5-99). Mr. Seyle further admitted that it was not appropriate to use the cited Engineer Regulation in estimating a project which required the removal of rock. (Tr. 5-98). (APFs 57, 58, and 59).
36. The Respondent District's Engineering Division had prepared an earlier, and much higher, estimate of the cost to perform the work than was reflected in the official Government Estimate prepared by Mr. Seyle. On June 23, 1983 (the solicitation was issued on July 28, 1983), the District's Chief of Engineering, Mr. Ronald Brunson, indicated that the project was estimated to cost $10,114,000, including $8,317,000 for the new work portion of the project. (Exh. A-76; APF 80). There is no evidence detailing the reasons for the differences in these two Government estimates.
37. The other surrounding dredging projects in Kings Bay were performed by large business concerns and required the removal of rock and rock-like materials. (Exh. A-29; Tr. 1-60-61; 5-157). In addition, a far greater concentration of borings was taken in the surrounding area for those projects. (Exh. A-13; APF 64).
38. Bids were opened on September 7, 1983, and the Appellant, J.A. LaPorte, Inc., was the apparent low bidder. The bidding was as follows:
J.A. LaPorte, Inc. -- $4,879,000.00
Merritt Dredging Co. -- 4,928,890.36
Southern Dredging Co. -- 5,283,253.04
Atkinson Dredging Co. -- 7,400,979.70
Hendry Corporation -- 8,228,417.00
Government Estimate -- 6,478,437.56
(Rule 4, Tab E-4).
C. Performance--What Was Encountered
39. Notice to Proceed was issued to the Appellant on November 14, 1983, and acknowledged on November 16, 1983. (R4, E-2). Appellant's first daily report of operation was dated February 13, 1984. (R4, E-18). According to those daily reports, the ARLINGTON commenced dredging on February 16, 1984. (R4, E-18; Tr. 1-175).
40. The dredge ARLINGTON was in good condition on arriving at the job site. (Tr. 4-80, 81). The dredge had completed a dredging job in the Norfolk, Virginia harbor during which a ladder pump was installed. (Tr. 2-72, 73; 4-18). The Norfolk job was completed in May, 1983, and the dredge ARLINGTON, with the ladder pump, performed other work before mobilizing to Kings Bay in February, 1984. (Tr. 2-71). According to a Government Memorandum for Record developed during the pre-bid survey, the dredge ARLINGTON was "... one of the best 16-inchers around and it has four pumps which really throw it out." (Exh. A-19).
1. The Rock Claim
41. Upon commencement of the new work dredging at Station 29+250 the Appellant immediately began to encounter material which was more difficult to dredge than it anticipated. (Tr. 1-182; 2-340). Upon learning that the dredge had encountered unanticipated hard digging, the Appellant's Vice President, Mr. William MacDonald, stated that he was shocked (Tr. 2-341-342) and that he went back to his office in order to locate a rock cutter for the dredge. (Tr. 1-204; 2-340). This was the first time that the Appellant had purchased a rock cutter in its history. (Tr. 3-254-255; Exh. A-36). The Government Estimator also did not anticipate the use of a rock cutter or the frequent replacement of cutter teeth when the Government estimate was prepared. (Tr. 5-69; APF 80).
42. During the dredging operation, cutter teeth broke off because of the bouncing of the cutterhead on "hard material" or rock. (Tr. 2-167). During such encounters it was necessary to change cutter teeth frequently. (Tr. 2-168). Use of a rock cutter and cutter teeth is unnecessary in dredging sand. (Tr. 6-265; APF 80). The need to install a rock cutter, and the frequent replacement of cutter teeth, as well as whole cutters, were indications of the dredging of rock and/or "hard material" that was encountered by the Appellant. (Tr. 2-167-168, 5-69, 154-155; 6-265; 8-177). The replacement of cutter teeth is one of the ways that a rock dredger confirms that he is dredging rock. (Tr. 4-157). It takes a long time to wear down a cutter tooth to a point where it would have to be changed if dredging soft material. (Tr. 2-167). Appellant purchased over 2,000 cutter teeth from the Ellicott Machine Corporation in addition to two rock cutters. (See Exh. A-41; Tr. 3-132-133). Not all of the cutter teeth needed for the project were purchased from Ellicott, however, and the Appellant experienced difficulty obtaining cutter teeth. (Tr. 3-134).
43. The dredge lurched and vibrated violently when rock and/or "hard material" was encountered (Tr. 1-180-181), as verified by: Mr. Stanley, the leverman on the Dredge ARLINGTON, and a man of over 30 years of experience in dredging (Tr. 2-154-156); the superintendent of the ARLINGTON, Mr. Wells (Tr. 4-20); and the Government's inspector, Mr. Guyer (Tr. 6-245). The levermen also knew that the material was getting harder by the amperage gauges on the dredge which showed increased amperage on the cutter motor as the material became harder. (Tr. 2-153-154). Mr. Wells concluded that "we got into some real hard stuff" as evidenced by the "pulling on the cutter motors and the dredge jumping and snatching and walking." (Tr. 4-19-20). Mr. Stanley testified that when the dredge encountered "hard material" "you get a lot of jump ... shaking," and that this "shaking" was identical to his previous experiences when rock was encountered in dredging. (Tr. 2-154-156). This shaking was not something that frequently happened on a dredge unless you were in "real hard digging." (Tr. 4-20). In addition, the Respondent's chief inspector, Mr. Guyer, testified that he could tell that there was hard digging taking place by the "vibrating and shaking" and by the fact that you could feel the dredge "rattle." (Tr. 6-245; APF 76).
44. The approximately 50-ton ladder on the dredge "jumped" because the force required to cut the material was so great that the ladder twisted and "shuddered" after a "chunk" of hard material would break loose. (Tr. 2-349). On March 15, 1984, because of the banging and shaking of the dredge while it attempted to dig the hard material, the ladder cracked. (Tr. 1-200-201; 2-160-161). Appellant repaired the ladder and changed the trunnions to limit the movement of the ladder and more firmly attach it to the main part of the dredge. (Exh. A-42; Tr. 1-205). Throughout the remainder of the dredging, Appellant repeatedly repaired and strengthened the ladder so that the dredge could continue to excavate the hard material. (Exh. A-10). The Appellant had not previously experienced anything like the ladder break which occurred early in the project. (Tr. 1-201). The Government's Chief Inspector testified that it was not uncommon to break a ladder in a rock job. In his experience, large business contractors, Great Lakes Dredge & Dock Company and American Dredging Co., experienced cracked ladders at Kings Bay while dredging rock. (Tr. 6-217). The preponderance of evidence at the hearing established that the ladder break was not the result of fatigue resulting from age or long use as Respondent proposes, but was caused by overstress resulting from the hard digging which Appellant encountered. (Tr. 1-200-201; 2-160-161).
45. The contemporaneous production records and daily reports maintained in the instant case are replete with references to equipment breakdowns and poor production characteristic of dredging hard material, as well as descriptions of the rock and "hard material" encountered. Respondent's handwritten quality assurance reports frequently indicate that Appellant was digging "hard material" and in numerous instances refer to the material as rock. (APFs 95, 111). Mr. Guyer testified that, early on, he was instructed not to use the term "rock" in his daily logs and that he changed the terminology to "hard material" as a result of this instruction. (Tr. 6-192; APF 106).
46. The production records were shown, by experts, to evidence difficult dredging, particularly in light of the frequency and type of equipment breakdowns experienced, and the eyewitness accounts of those on board the dredge. Numerous references were made to the repair of pumps and motors as a result of rock in the pumps, as well as to other repairs. (See Exh. A-10; Exh. A-16; Tr. 2-160; 3-224, 5-149; APF 111). Respondent's daily reports also contained verification of hard digging, particularly in the diaries kept by Respondent's inspectors and the handwritten Quality Assurance Reports (QARs). (APF 95). Examples from the QARs are as follows (APF 95):
April 4, 1984Digging was hard at times. Digging mostly sand and clay with rock at times.
April 17, 1984Change cutter head twice during day. Also down several times during shift to check and change cutter teeth.
April 24, 1984Found some rock on dike at end of pipe, mostly small pieces.
April 26, 1984There were [sic] some hard digging at times.
May 5, 1984Seen small amount of rock at end of pipeline. Not near the amount as usual. [sic]
May 13, 1984Dredge is still digging hard aterial. Hard digging.
July 4, 1984Several large rocks were taken from pump this date. The rock was encountered between Stations 31+750 to 31+700, 200 feet west of centerline, digging at 35 feet.
July 9, 1984Shutdown to weld a crack in the ladder.
July 29, 1984A hard bottom was encountered at Station 33+100.
August 17, 1984Pumping were [sic] hard at times as we would hit some hard material.
August 17, 1984Dredge was digging at 47 feet of depth in order to leave water in one pass but experienced hard bottom and was forced to dig at 46 feet.
August 26, 1984The dredge shook intermittently and you could hear pieces of hard material passing through pumps and lines.
September 2, 1984But the material was very hard on west side of cut, with cutterhead bucking and dredge shaking violently.
September 3, 1984Several times it seemed as [sic] we are hitting some hard material.
September 13, 1984Hard material was encountered at 0100 hours at Station 36+600 at an approximate depth of 42 feet.
47. Appellant often removed "chunks of rock" from the dredge pumps. (Tr. 2-159). Rocks were removed from the pump during the entire depth of the cut, "from the top on down," in some areas. (Tr. 2-150; R. 4, Tab E-9). These rock samples were available virtually every day and representatives of the Respondent were seen taking these samples and "hauling them off." (Tr. 3-7). Records of rock samples were not kept by the Respondent until 24-hour inspection began in May, 1984. (Tr. 6-295). About seventy rock samples were obtained by the Respondent thereafter. (Tr. 5-30). Appellant's effort to identify the samples during discovery was unsuccessful because most of the writing on the identifying tags had washed off. (Tr. 7-195). There is no evidence as to the procedures used by the Government in selecting the Rock samples, i.e., how and why particular samples were chosen and whether all samples were tagged and listed by the Government. Evidence as to the depth and location of the Government samples selected is hearsay and we consider it to be unreliable. (Tr. 7-187-90). We conclude that the rock was located at various depths from 35 to 46 feet, and it varied "over the swing of the dredge." (Tr. 3-52-53; R. 4, Tab E-9).
48. The material dredged often came out of the discharge pipe at the disposal area primarily in a liquid form (Tr. 1-181-182) and had a "whitish, milky look to it" like "buttermilk." (Tr. 3-175 4-22; ). Mr. Wells testified that he knew this "milky" material was hard in situ because he was in radio contact with the leverman on the dredge at the same time he observed the "milky" material at the discharge. (Tr. 4-22). The leverman reported that the dredge was vibrating, shaking and digging hard material. (Tr. 4-54). Sometimes there would also be some chunks of rock together with the "milky looking stuff." (Tr. 4-87; R. 4,, Tab E-9). "Knives" were placed in the pumps in order to break up the rock and/or hard material encountered. (Tr. 1-171-2, 182-3). Appellant explained the process by which the rock and "hard materials" were subjected to certain forces during the dredging operation:
"... the cutter which would break it out in large chunks and then it would go through the first pump which would grind it up into smaller chunks. And then effects of these knives I discussed earlier would grind it up more each time it went through a pump. And then it would have to roll down two-and-a-half miles of pipeline before it would finally exit."
(Tr. 1-182-183).
49. The Appellant's expert, Dr. Mahar, verified that the materials dredged could have come out of the discharge pipe looking like buttermilk. He explained that "if the calcium carbonate was reasonably high, either within the grains or within the matrix, then essentially what you end up developing is a lime slurry in the process of breaking down the material at the cutterhead and through the entire system ..." (Tr. 3-175). Mr. Seyle, the Government Estimator and Project Manager, also conceded, that it was possible that the materials would change in appearance and characteristics from the point of excavation by the cutterhead to the point of discharge. (Tr. 5-139-140). Appellant's dredging expert, Mr. Thomas Turner, indicated that more-lightly-cemented materials would be broken up by the knives in the pumping process (Tr. 8-135-7, 189-90).
50. We conclude that materials consisting of rock, and materials which behaved like rock in excavation (whatever their precise geological classification), i.e., "rock-like" materials, were encountered in large quantities at various, extensive locations throughout the new work area from Stations 29+250 to 35+600. (Exh. A-97; R. 4, Tab A). These materials were reported by Appellant to be located at various depths from 35 to 46 feet, and varied "over the swing of the dredge." (Tr. 3-52-53; R. 4, Tab E-9). The material was also reported as being a highly cemented, "rock-like" material, at varied depths, but often found at elevation 39 feet and below, and in some cases, extending for a depth of 10 feet. (Tr. 1-180). The material was harder on the second pass, "maybe down the last ten feet or something, that was the hardest." The material "was very streaky and that you might run into different streaks of different types of material." (Tr. 4-21; APF 88). However, there were not identifiable areas of rock which could be precisely marked, located and then avoided because of the difficulty of dredging. Appellant's Vice President, William MacDonald, stated that, "... the problems just were ongoing and we got in and out of them. You just couldn't tell and you could almost see it on our reports. When you got out of it, it got good and all you would hope was you wouldn't get in it any more." (Tr. 3-61).
51. LaPorte dredged the majority of material within the allowable overdepth. (Appellant Exhs. A-11.1--A-11.42) The profiles submitted into evidence by Appellant reflect not only the removal of the allowable overdepth but also the dredging and removal of some material below allowable overdepth. Mr. Robert Spies, a certified hydrographer and expert in hydrographic surveys performed by the Corps of Engineers, testified for the Appellant. Mr. Spies has considerable experience in the taking of hydrographic surveys, and served for many years as the Chief of Surveys for the U.S. Army Engineer District, Philadelphia. (Tr. 8-261). He reviewed the composite survey prepared by the Savannah District. Based upon that review, his testimony and conclusions, we find that Appellant dredged below allowable overdepth approximately 33,000 cubic yards of material below the allowable overdepth in the claim area, not the 247,000 cubic yards alleged, but incorrectly calculated, by the Respondent. (Exh. A-96). The areas of dredging below the allowable overdepth occurred, predominantly, in areas where the Corps of Engineers declined to waive deficiencies and had ordered redredging. (Exh. A-61, A-97; Tr. 8-283; APF 142). Furthermore, Mr. Spies testified that in a project of approximately 2,000,000 yards, 33,000 yards, or approximately 1 1/2 % of the contract yardage, "doesn't really indicate to me that there has been that excessive an amount of overdredging." (Tr. 8-283). He further stated that it is common to dig below required dredging depth, "especially if you have to go back and redredge." (Tr. 8-282-283). To avoid having to come back again for more redredging the most expedient thing to do was to remove all of the material across the swing of the dredge. (Tr. 3-63-64).
52. The materials encountered reduced the production rate of the dredge by tending to break up the machinery and by lowering the rate of dredging while the equipment was operating. (Tr. 1-183; 2-159). As a result of this, it took longer to perform the new work dredging than anticipated. (Tr. 1-242; APF 109). Appellant's Exhibit A-10 showed the days of dredging required in the Southern half of the channel and throughout the claim area. A centroid was placed on the chart for each day of dredging in the claim area. (Exh. A-10). (APF 110). Appellant alleges that it encountered approximately 800,000 cubic yards of rock or "rock-like" materials, in excess of what it reasonably should have anticipated between Stations 24+250 and 35+600. The Government argues that these was no reasonable difference between the quantity of such materials indicated and that encountered above 46 feet. We have reviewed the voluminous, contemporaneous records and daily reports relative to production and performance of this contract, as well as contractual subsurface data. This review included the following evidence, in addition to the contract: Exhs. A-10, A-18, A-67-74, A-77; R. 4, Tabs A-1(9)-(14), E-17, E-18, E-19, E-23 (as supplemented). In particular, our review considered production rates, report of materials encountered, recitations of problems reported, and the nature and extent of maintenance and repairs. Based on the review, we find, in the nature of a jury verdict, that within the "Rock claim" area between stations 29+250 and 35+600, 25% of the material was either rock or "rock-like"; of this total, 1/2 (12 1/2 %) of the material was rock and an additional 1/2 was "rock-like."
2. The Dike Construction Claim
53. The specifications required the Contractor to complete all of the work in an acceptance section before payment could be received for that acceptance section. (Tr. 1-171; R. 4, Tab A-1-2; APF 144).
54. The Appellant anticipated that fine, silty sand, as described in the plans and specifications, would be available to construct the dikes. (Tr. 1-171). Although the solicitation originally allowed work to begin at the northern end of the project, which was closest to the disposal area, an amendment to the solicitation (Amendment No. 0001) changed the requirement and mandated that dredging begin at the southern end of the project (Station 29+250) which was the greatest distance from the disposal area. (Tr. 1-170; R. 4, Tab A-1-2; APF 145).
55. Unsatisfactory material for dike construction was encountered at the outset of the construction dredging on February 25, 1984. (Tr. 1-176). The rock and "rock-like" materials encountered from Stations 29+250 and northward required a great deal of unanticipated effort to excavate, but often came out of the discharge in the form of a "milky looking" material. (Tr. 1-171-172). This material did not build the dike very well because it "washed away like water" and "ran very flat." (Tr. 1-173-174; 3-5; APF 145).
56. The Authorized Representative of the Contracting Officer observed that the Appellant was having "some difficulty in getting the material to stand" in the construction of the dikes. He further observed that "they had difficulty with the toe dikes washing out as they were pumping." (Tr. 5-136-137; APF 147).
57. The Appellant planned to complete the dikes with the first one million yards of material dredged from Station 29+250 to approximately Station 32+500. (Tr. 1-176-178). Instead, the Appellant ultimately used all of the material in the construction, new work dredging (2,100,000 yards), and beyond, before completing the construction of the dikes. This included material to Station 39+600. (Tr. 1-177; APF 148).
58. The Respondent estimated that all of the material needed to build the dikes would come from Stations 29+250 to 33+750, and agreed that it should have required approximately 1,000,000 cubic yards. (Tr. 5-89-90; APF 149).
59. The additional quantity of material required to build the dike required additional time and effort and continued use of a longer pipeline around the perimeter of the dike. This, in turn, contributed to the Appellant's decreased production because of the longer pumping distances. (Exh. A-47, pp. 242-244). Mr. Wells testified, moreover, that the Appellant "had to make three passes around that dike." (Tr. 4-52; APF 150).
3. The Clay & Conch Shell Claims
60. Appellant allegedly encountered a "large deposit of dense, hard clay from Stations 35+600 to 37+000." The Appellant further testified that the clay had a tendency to "gum up in the pipeline" and thereby reduce production. (Tr. 1-244-245). Appellant points (in its Briefs) to no daily reports or other contemporaneous documentation in support of its contentions that the clay deposits in that area were "large," "dense" and/or "hard."
61. The probings undertaken by the joint industry-wide probing party prior to bidding indicated significant layers of clay. Specifically, probing Nos. 3 and 6 indicated 7 and 8 foot layers of clay respectively, while probings 1 and 3 indicated 11 and 13 foot layers of sand/clay mixtures respectively. (R.4, D-2; Exh. G-2).
62. Numerous boring logs reference the presence of clay. In particular, the field or laboratory classification of samples in several borings (12, 78, 161, 207, 212, 213) in the general "claim area" (i.e., Stations 35+600 to 37+000) indicated the presence of clayey sands above 46 feet. (R. 4, Tab E-24, Appendix B).
63. Areas of conch shells were encountered by the Appellant commencing June 19, 1984, in the vicinity of Stations 32+000 to 32+250. (Exh. A-97; Exh. A-28; Tr. 1-219).
64. The handwritten Quality Assurance Reports prepared by Respondent's Inspectors contained the following references to shells from June 19, 1984 to June 26, 1984:
June 19, 1984The plug consisted of conch shells, clam shells and gravel.
June 20, 1984Small shells were causing leverman to pump slowly as not to choke line ... shut down to wash shell from line.
June 20, 1984Dredge went down with plugged pipeline
June 20, 1984The plug consisted of clam and conch shells.
June 21, 1984Dredge was pumping slowly thru shell to keep from plugging pipeline. At about 0600 Dredge seemed to be leaving shell area.
June 24, 19841035 hours pump # 4 blew. This was due to a plug in pump or line consisting of conch shells. 1930 hours--conch shells.
June 25, 1984Dredge is still digging conch shells but seems to be pumping OK.
June 26, 1984The spoils consisting of sand and conch shell were pumped onto the mainside disposal area.
(R. 4, Tab E-23; APF 157).
65. The specifications stated that "sands often have varying amounts of shell fragments." (Rule 4, Tab E-10, para. 4.1.1). Thirty-five of the 43 boring logs mentioned shells and shell fragments. (R. 4, Tab E-24, App. B; GPF 45). The logs did not mention "conch shells" or otherwise differentiate as to type of shell.
66. Mr. Wells, the Appellant's superintendent, testified that he had never run into an area of conch shells in the thirty years that he had been dredging "where the shells were in a bed or concentrated." (Tr. 4-29-30). He stated that this concentration was all the more unusual because the conch, unlike the oyster, "moves on the bottom." (Tr. 4-75).
67. The Contracting Officer denied all of Appellant's claims by final decision dated July 30, 1985. Appellant timely appealed.
DECISION
A. Rock & "Rock-like" Materials
Pursuant to Section (a)(1) of the Differing Site Conditions Clause, Appellant alleges that it is entitled to an adjustment in the contract price as a result of encountering rock and what the parties refer to as "hard," "rock-like" materials between Stations 29+250 and 35+600. To recover for a Type I differing site condition, the Contractor must establish that it encountered subsurface or latent physical conditions differing materially from those indicated in the contract documents. In essence, the underlying issue in a Type I claim is whether the Contractor could reasonably have anticipated the conditions encountered from indications in the contract documents, its inspection of the site, and its general experience as a contractor. In order to prevail, Appellant must prove, inter alia, that the material it encountered differed materially from that indicated in the contract. See, e.g., Foster Construction, C.A. v. United States, 193 Ct.Cl. 587, 435 F.2d 873 (1970); Perini Corp. v. United States, 180 Ct.Cl. 768, 381 F.2d 403 (1967); Kaiser Industries Corp. v. United States, 169 Ct.Cl. 310, 340 F.2d 322 (1965). The Government argues primarily that Appellant has failed "to prove the existence of a material difference between what was specified and what was encountered on this job."
1. What Was Indicated
Both parties agree that no rock was indicated above project depth (44 feet). In addition, rock indicated in the allowable overdepth (44 to 46 feet) was de minimis. The Government's principal contentions in this case are that: (1) any rock dredged by Appellant predominantly was located below the allowable overdepth; and, (2) the difficult dredging experienced by Appellant above 46 feet was attributable to the excavation of "hard" (or "rock-like") materials which were adequately described in the contract's boring logs and which should have been anticipated by Appellant. The Government has sustained neither of these contentions.
With respect to the Government's second contention, we consider that the contract did not reasonably indicate that the subsurface material would be difficult to excavate, outside the "Widener Strip" area. The materials throughout the project area were consistently classified as soil with virtually no indication of cementation, induration, lithification or other properties characteristic of rock or "rock-like" material in or above the allowable overdepth. Numerous engineering and geology experts testifying at the trial confirmed that the contract described the material as "free flowing" sand and silt. Similarly, the Government assumed in preparing its estimate that the subsurface material comprised, on average, free-flowing sand and silt, without reflecting anticipation of difficult dredging.
The Government relies primarily on "blow-count" (or Standard Penetration Test) data in support of its contention that the contract indicated the presence of "rock-like" materials. The Government's interpretation of blow-count information provided is unreasonable as to most of the project area for a number of reasons.
First, and most importantly, the vast majority of the borings, including the most significant borings, i.e., all nine "Mid-Channel Borings," contained no blow-count data whatsoever. Contrast Guy F. Atkinson Co., ENG BCA No. 4693, 87-3 BCA p 19,971. Blow count data was missing for areas where most dredging occurred.
Second, contrary to the implications in the Government's argument, many of the logs that did contain Standard Penetration Test Results set forth blows per foot ranging from low to zero above 46 feet (Borings 161, 207, 157, 209, and 214). In the circumstances, it would have been unreasonable to assume that high blow counts in other logs typified the degree of compaction and density of all materials to be dredged. This is particularly true where the "Character of Materials" clause described the sands to "range from loose to moderately dense." At a minimum, the contract was latently contradictory and ambiguous as to the compactness of the subsurface materials.
Third, the logs referenced by the Government where higher (50+) blow counts were indicated (above 46 feet) pertained either to holes that were drilled: (1) on the slopes of the channel, with the higher blow counts commencing well below the areas to be excavated and those actually dredged by Appellant (Borings 208, 213, and 159); (2) so far off the channel perimeter (Borings 206 and 209) and/or north of the areas in dispute as to have only marginal relevance at best (Borings 158 and 159); and, (3) in the "Widener Strip" (i.e., Borings 122, 124, 146, 147, 148, 150, and 165). To the extent the blow count data in the first two categories above indicated difficult dredging conditions, they were far outweighed by numerous contrary indications, reasonably relied upon by Appellant and Government estimators and confirmed by Appellant's experts, that the materials would be "free flowing" sand and silt. On balance, the limited, inconclusive blow count data does not preclude recovery of any increased costs of dredging "rock-like" materials. Moreover, we are convinced that much of this material should have been, but, for whatever reason was not, indicated to be rock, as discussed, infra.
However, for the reasons detailed below, we consider that Appellant should have anticipated the presence of harder, difficult-to-dredge materials, but not rock, based on the higher blow count data shown on the boring logs for the "Widener Strip" area. This conclusion as to a limited area, however, does not preclude establishment of a Type I differing site condition and recovery with respect to the vast majority of the area here in dispute. In this case, as pointed out below, it merely becomes a factor in determining the dredged quantities with respect to which Appellant is entitled to an equitable adjustment. In essence, what the Government would have us do is assume a "worst-case" presence of "rock-like," hard material throughout a 2 mile project based on a few isolated, infrequent hints in the description of the materials in relevant boring logs plus high blow count data on logs of borings in the confined, small area of the project that we have denominated the "Widener Strip." Viewed in its totality, the contract reasonably did not indicate that "rock-like" materials would be encountered, much less the presence of rock. The Government's "worst-case" interpretation of the contractual indications is invalid. See e.g., Redman Service, Inc., ASBCA No. 8853, 1963 BCA p 3897. Other than with respect to the "Widener Strip," Appellant reasonably relied on the contract documents, together with its prebid investigation and evaluation of all other pertinent information, in anticipating subsurface material that would not be difficult to excavate.
2. What Was Encountered
There is considerable expert testimony in this appeal as to whether the materials sampled in the boring process were misdescribed and misclassified in the logs. Appellant also maintains that boring procedures used were improper, likely causing or contributing to alleged misdescriptions and misclassifications, particularly with respect to the cursory, 1977 borings. In this case, we consider it unnecessary to make findings relative to the misclassification issues. We are not concerned with how the alleged misdescription occurred, only with the fact that the material encountered was other than as indicated in the contract. Clearly, there is voluminous factual evidence as to what was encountered by Appellant in dredging the Kings Bay Channel. That evidence fully supports Appellant's contentions that both rock and "rock-like" materials were encountered in substantial quantities. The quantities of both rock and "rock-like" materials encountered differed materially from those indicated in the contract and substantially increased the difficulty and cost of Appellant's dredge operations. Cf. Burl Johnson & Associates, ASBCA p 7619, 66-2 BCA p 5866 (material harder and more difficult to excavate than indicated); Minnis and Wright and Garn L. Moody, AGBCA No. 332, 74-2 BCA p 10,685; Select Contractors Inc., ENG BCA No. 3855, 79-2 BCA p 14,155 (hard-packed sand encountered; loose sand indicated); Maitland Bros. Co., ASBCA No. 24032, 84-2 BCA p 17,463; Lockheed Shipbuilding Co., ENG BCA No. 3141, 74-1 BCA p 10,512 (rock surfaces higher than represented in contract drawings).
Our conclusion that materially-different rock and "rock-like" materials were encountered is supported by the combined, cumulative presence of all of the following facts:
(a) repeated references to the dredging of such materials, at varying depths and locations, in the daily reports of both Appellant and the Government. Cf. American Dredging Co., ENG BCA No. 2920, 72-1 BCA p 9316 at 43,190;
(b) frequent removal from the dredge pumps of large chunks of rocks that failed to disintegrate, as discussed below, in the excavation and pumping process. Cf. Bernard McMenamy Contractor, Inc., ENG BCA No. 3413, 77-1 BCA p 12,335;
(c) undisputed testimony of experienced dredge operators of persistent jumping and twisting of the 50 ton dredge ladder and strain on cutter motors evidencing difficult dredging.
(d) necessity to purchase and install a first rock cutter and the purchase and use of 2000 rock cutter teeth during performance. Cf. Select Contractors, Inc., ENG BCA No. 3855, 79-2 BCA p 14,155 at 69,679; see also Maitland Bros. Co., ASBCA No. 24032, 84-2 BCA p 17,463 (use of different, more powerful equipment); Dunbar & Sullivan Co., ENG BCA No. 3165, 73-2 BCA p 10,285;
(e) other abnormal, excessive equipment breakdowns, repairs and erratic production when the dredge ARLINGTON was indisputably in good operating condition upon arrival at the site. Cf. Bernard McMenamy Contractor, Inc., supra; JB & C Co., IBCA No. 1020-2-74, 77-2 BCA p 12,782.
In this case, the rock and hard material were pervasively located in varying amounts and depths throughout the claim area. Particularly following inception of its 24-hour inspection, the Government was as well aware of, and capable of verifying the location of the materials, as Appellant. In the circumstances and, particularly in view of the nature of the hydraulic dredging process, the location of the rock/hard materials was sufficiently identified, the Government's arguments to the contrary notwithstanding. Cf. Dunbar & Sullivan Dredging Co., ENG BCA No. 5218, 87-2 BCA p 19,773 at 100,056-57.
Most of the rock/hard material was not dredged from below the allowable overdepth. The Government's allegations of substantial dredging below allowable overdepth were not proved. Appellant established through the testimony of its expert hydrographyer, Robert Spies, that, contrary to Respondent's calculations, the amount of material Appellant excavated below the allowable overdepth did not exceed 33,000 cubic yards. Mr. Spies further established that the excavation of material in both the allowable overdepth and below occurred predominantly in areas where Respondent ordered redredging. Moreover, the daily reports often evidence the encountering of rock and "rock-like" materials at various depths above project depth (44 feet).
The Government argues that if rock was encountered in material quantities, it would have shown up in the disposal area. It contends, "Appellant would have this Board believe that the four pumps on its dredge, took rock, crushed it into a ... slurry [pumped it through a two mile pipeline] and deposited it ... within the disposal area.... as a thick, milky, white goo."
First the evidence is overwhelming that Appellant encountered rock and/or hard material, as detailed above. Second, according to Mr. Jantzen the "Cuisinart"-like process of pulverizing the hard materials, is exactly what the "knives" in the four dredge pumps were designed to accomplish. They worked to a large degree. Third, despite the process, considerable rock did "hang up" in the pumps, shutting down operations, and had to be physically removed. Some smaller chunks of rock that remained intact after passing through the knives and the long pipeline were deposited in the disposal area. Fourth, the likelihood of the disintegration of the rock or "rock-like" materials and the creation of a "lime slurry" through the pipeline was verified by Dr. Mahar. Mr. Turner also indicated that more-lightly-cemented materials would be broken-down by the knives in the pumping process.
There is no precise method of determining the exact quantities of the material dredged that was either rock or "rock-like" in situ. However, we have concluded, based upon the entire record (as specifically detailed in Finding 52), that 25% of the material dredged between Stations 29+250 and 35+600 either was rock or was rock-like in its excavation properties. We have further found that 1/2 of that quantity was rock and 1/2 was "rock-like." Outside the unchallenged "zones of influence" of the seven "Widener Strip Borings," as charted by Mr. Sawyer, Appellant is entitled to an equitable adjustment with respect to 25% of all materials dredged between Stations 29+250 and 35+600 with the exception of any shoaling and any materials dredged below 46 feet (i.e., the lower limit of the allowable overdepth). We hold that, to that extent, the material encountered in those areas differed materially from what was indicated in the contract.
However, we further conclude that Appellant is entitled to an equitable adjustment with respect only to 12 1/2 % of the material removed from areas within the zones of influence of the seven "Widener Strip Borings." We consider that material to be rock and materially different than the contractually-indicated conditions. But, in the "Widener Strip" area, Appellant may not recover for the dredging of "rock-like" materials. We consider that difficult dredging in such materials reasonably should have been anticipated in that small sector of the project, even though such difficulty was not indicated for the entire two mile project. First, Boring 146 indicated the presence above project depth of limestone fragments in, and partial lithification of, materials classified, albeit, as soils. More importantly, the borings for that area, unlike those for the remainder of the channel, uniformly and consistently indicated the presence of high blow count (50 to 100 blows per foot) materials above project depth and into the allowable overdepth. In 50 to 100 blow-count material, we have found that as blow count increases, dredge production decreases. Appellant's dredging expert and the designer of its dredge ARLINGTON readily admitted that the removal of even 50 blow count material likely would be difficult for the ARLINGTON. Within the "Widener Strip" section of the project the presence of difficult-to dredge soils was indicated and reasonably should have been anticipated. We emphasize, however, that our use of Appellant's "zone of influence" concepts has been solely for the purpose of estimating the equitable adjustment quantities in the Widener Strip area. We express no opinion as to the propriety of other uses to which those concepts may be put.
We also express no opinion as to the reasonableness of production rates in dredging either the contractually-indicated or actually encountered materials. Issues pertaining to such rates are remanded to the parties for consideration in quantum negotiations.
This portion of the appeal is SUSTAINED to the extent set forth above.
B. The Dike Construction Claim
Appellant's Dike Construction claim flows logically from its "Rock claim." Appellant anticipated that fine, silty sand, as described in the plans and specifications, would be available to construct dikes. Rock and hard material encountered, however, adversely affected construction. Due to the additional effort required in excavation, the material which was hard and cemented in situ was transformed by the excavation process to a milky slurry at the point of discharge. This slurry was unsuitable for dike construction because it readily washed out. Appellant's evidence as to the difficulty encountered in dike building essentially is unrebutted by the Government.
The Government's contentions in defense of this claim have proved unpersuasive, as detailed in our above discussion of the "Rock claim." The Government's primary argument that the two claims are inconsistent is based on its assumption that, if rock was being dredged, it must be deposited as identifiable rock in the disposal area, not as the "milky goo" actually disgorged during periods of "hard digging." This assumption is not supported by probative evidence. The "Cuisinart-like" excavation and pumping process and its results were supported by a clear preponderance of the evidence.
Appellant is entitled to an equitable adjustment to compensate it for its increased dike building expenses, taking into consideration the extent to which we have found entitlement in connection with the "Rock claim."
C. The Clay & Conch Shell Claims
Appellant has failed to prove that clay materials dredged differed materially from those indicated in the contract. Probative evidence fails to support its contentions that clay layers were "larger," "harder" and "more dense" than what it reasonably should have anticipated. In particular, Appellant points to no contemporaneous documentation substantiating material differences. Numerous boring logs indicated the presence of clay. The "Character of Materials" clause referenced "stiff" clays. Pre-bid probings revealed thick layers of clay.
Appellant contends that, "At the time Respondent prepared the plans and specifications for this project, it was in possession of boring logs prepared in 1977 which described the dense, hard clay Appellant encountered. Had Respondent included this information in the instant contract, Appellant would have been on notice of potential difficult dredging in the area of Stations 35+600 to 37+000."
Regardless of the existence of other borings, we consider that the presence of clay was adequately indicated in the solicitation and contract. Given those indications and the pre-bid probing results, the Government did not fail to disclose its knowledge of subsurface conditions, nor was that knowledge "superior" to information known by Appellant.
Appellant also maintains that, "Through its discovery of a concentrated bed of conch shells in the vicinity of Stations 32+000 to 32+250, Appellant is entitled to recover for both a Type I and Type II differing site condition."
We consider that Appellant's "Conch Shell Claim" is without merit. Thirty-five of the contract's 43 boring logs indicated the presence of shells and shell fragments, undifferentiated as to type. The specifications also advised of their existence. Although Appellant alleges that the dredging of a "concentrated bed" of "conch" shells differed from the dredging of less concentrated clams and oysters, it is our judgment that no material difference has been shown, particularly in view of the pervasive indications of shells. Moreover, the daily reports indicate that clam shells as well as conch shells caused the plugging of the pipeline. Inasmuch as we consider that the contract sufficiently indicated the presence of the shells encountered, Appellant also may not recover for a Type II condition. With respect to Type II, we also do not consider that Appellant's evidence supports a conclusion that encountering a bed of conch shells is "unusual" for "new work" in the coastal reaches of Georgia. In particular, the nature and extent of Mr. Wells' "new work" experience in the vicinity has not been demonstrated to be sufficient to support a finding that the condition was unusual.
This portion of the appeal is DENIED.
CONCLUSION
The appeal is SUSTAINED as to the "Rock" and "Dike Construction" claims as detailed above, and DENIED as to the "Clay" and "Conch Shell" Claims.
ROBERT T. PEACOCK
Administrative Judge
RICHARD C. SOLIBAKKE
Administrative Judge
Chairman
CHARLES J. SHERIDAN
Administrative Judge
Vice Chairman
I certify that the foregoing is a true copy of the Corps of Engineers Board of Contract Appeals Decision No. 5252, Appeal of J.A. LaPorte, Inc., under Contract No. DACW21-83-C-0090.
Date: June 30, 1988
RUTH L. PRICE
Recorder