A.S. McGaughan Co. v. United States

37 Cont. Cas. Fed. 76,239, 24 Cl. Ct. 659, 1991 U.S. Claims LEXIS 574, 1991 WL 269772
CourtUnited States Court of Claims
DecidedDecember 17, 1991
DocketNo. 390-89C
StatusPublished
Cited by9 cases

This text of 37 Cont. Cas. Fed. 76,239 (A.S. McGaughan Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.S. McGaughan Co. v. United States, 37 Cont. Cas. Fed. 76,239, 24 Cl. Ct. 659, 1991 U.S. Claims LEXIS 574, 1991 WL 269772 (cc 1991).

Opinion

OPINION

FUTEY, Judge.

This government contract case is before the court on defendant’s motion for summary judgment. Plaintiff contracted with the United States to construct an addition to Abert Hall at the Defense Mapping Agency in Brookmont, Maryland. Plaintiff seeks compensation on behalf of its subcontractor for expenses incurred on encountering unexpected site conditions. In response, defendant filed a motion for summary judgment, alleging that the site conditions actually encountered were indicated in the contract and contract-related documents. Plaintiff opposes the motion on the grounds that genuine issues of material fact remain and that defendant is not entitled to judgment as a matter of law.

Factual Background

On June 6, 1986, the United States Army Corps of Engineers (Corps) awarded plaintiff, McGaughan Construction Company, a $17,745,000.00 contract for the construction of the Abert Hall addition, which was to be built over a ravine. Although the structure was to be supported primarily by caissons, the basement slabs were to rest on the natural soils and structural fill. This design required plaintiff to excavate into the hillside while placing structural fill in the ravine up to the level of excavation. Plaintiff subcontracted this part of the Abert Hall addition project to Dewey East Excavating Company, Inc. (DEECI).

The contract placed the responsibility for determining site conditions on the contractor. In provision 1.45, the contract stated:

The Contractor acknowledges that it has taken steps reasonably necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its costs, including but not limited to * * * (4) the conformation and conditions of the ground * * *. The Contractor also 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, as well as from the drawings and specifications made a part of this contract. Any failure of the Contractor to take the actions described and acknowledged in this paragraph will not relieve the Contractor from responsibility for estimating properly the difficulty and cost of successfully performing the work, or for proceeding to successfully perform the work without additional expense to the government. [Emphasis added.]

In section ID, paragraph 2.1, the contract referenced physical data furnished for information only:

Explorations: The physical conditions indicated on the drawings and in the specifications are the result of site investigations by core borings. Foundation exploration logs are shown on drawings. Whenever subsurface exploration logs are presented in the contract documents, soil test results are available for inspection in the Baltimore District, Corps of Engineers, Foundation and Materials Branch, Room 204, Fallon Federal Building, 31 Hopkins Plaza, Baltimore, Maryland. Soils and rock samples are also available for inspection; however, advance notice of at least 24 hours must be given so these samples can be made available. [Emphasis added.]

Since the structural fill had the potential to settle below the excavation level, defendant included in the contract numerous technical provisions designed to prevent such differential settlement. Among these provisions was technical section 2N, paragraph 2.1.1, which defined satisfactory fill materials:

Satisfactory Fill Materials: Structural fill, embankment and backfill within the building lines of structures, storm water [662]*662management basis, beneath appurtenant structures, and beneath abutting paved areas shall be those materials classified in MIL-STD-619B as GW, GP, GM, GC, SW, SM, SC, or combinations thereof, properly worked by the Contractor to obtain optimum moisture and the specified compaction except that not more than 80 and 30 percent by weight of the material shall pass the No. 4 sieve and the No. 200 sieve, respectively. [Emphasis added.]

Technical section 2N, paragraph 6, required fill to be compacted to 95 percent of maximum density, according to modified proctor standard CE 55.

In addition, various drawings and boring logs were attached to the contract. The boring logs revealed the soil as predominately brown and gray micaceous, silty sand. According to Military Standards (MIL-STD) 619B, this soil is classified as “SM.” The boring logs also revealed the presence of clay, gravel, rock, and roots in the SM soil.1 The boring samples were available for inspection with 24 hours notice at the Corps’ offices in Baltimore, Maryland.

In addition to compiling boring logs, defendant performed a sieve analysis of each boring sample. From these analyses, defendant prepared gradation curves.2 These gradation curves indicated that the on-site SM soil failed to meet the gradation requirements in technical section 2N, paragraph 2.1.1. Although the sieve analyses and gradation curves were not included in the contract documents, they were available for inspection at the Corps’ offices in Baltimore, Maryland.

Prior to bidding, another set of boring logs was compiled by Geotech, Inc., an engineering firm specializing in soils and foundation. Geotech prepared the logs for Ballinger Company, the architectural and engineering firm for the Abert Hall addition project. In preparing its logs, Geotech used the same boring samples that defendant had used in preparing the boring logs included in the contract documents.

The Geotech logs revealed the soil as predominately brown and gray micaceous, silty sand. These logs also revealed roots, twigs, wood, leaves, and other decayed matter, as well as clay, gravel, and rocks.3 The logs further referred to “fill” or “possible fill.”4 Defendant did not include the Geotech logs in the contract documents provided bidders.

In addition to compiling boring logs, Geo-tech prepared a soils report. In this report, Geotech recommended that clean granular soils, such as well graded sand or sand and gravel, be used as structural fill. Geotech noted that the on-site material could also be used for compacted fill. Because of the on-site material’s composition, Geotech recommended that any fill operation involving the on-site material be closely monitored, preferably by a soils engineer.

Defendant maintains that it purposely excluded the Geotech report from the contract documents provided bidders. According to defendant, it disagreed with some of Geotech’s recommendations and did not want to mislead bidders by including the report in the contract documents.

Prior to bidding, plaintiff reviewed the contract documents, including the boring logs and contract drawings. Plaintiff also [663]*663inspected the site. Plaintiff did not inspect the soil test results available at the Corps’ Baltimore office; nor did it perform its own soil tests. Thus, plaintiff did not review any sieve analyses or gradation curves before submitting its bid. On June 18, 1986, plaintiff received a Notice to Proceed and a short while later began work.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

weston/bean Joint Venture v. United States
123 Fed. Cl. 341 (Federal Claims, 2015)
Comtrol, Inc. v. United States
49 Fed. Cl. 294 (Federal Claims, 2001)
Fru-Con Construction Corp. v. United States
44 Fed. Cl. 298 (Federal Claims, 1999)
Hoffman Construction Co. v. United States
42 Cont. Cas. Fed. 77,247 (Federal Claims, 1998)
H.B. Mac, Inc. v. United States
41 Cont. Cas. Fed. 77,028 (Federal Claims, 1996)
Roy F. Weston, Inc. v. Halliburton Nus Environmental Corp.
839 F. Supp. 1151 (E.D. Pennsylvania, 1993)
A.S. McGaughan Company, Inc. v. The United States
980 F.2d 744 (Federal Circuit, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
37 Cont. Cas. Fed. 76,239, 24 Cl. Ct. 659, 1991 U.S. Claims LEXIS 574, 1991 WL 269772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/as-mcgaughan-co-v-united-states-cc-1991.