Fox v. United States

32 Cont. Cas. Fed. 73,128, 7 Cl. Ct. 60, 1984 U.S. Claims LEXIS 1227
CourtUnited States Court of Claims
DecidedDecember 19, 1984
DocketNo. 363-81C
StatusPublished
Cited by1 cases

This text of 32 Cont. Cas. Fed. 73,128 (Fox 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
Fox v. United States, 32 Cont. Cas. Fed. 73,128, 7 Cl. Ct. 60, 1984 U.S. Claims LEXIS 1227 (cc 1984).

Opinion

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

OPINION

SPECTOR, Senior Judge.

This action arises out of a contract for construction of the so-called Wagner Gap [62]*62Road in the Rogue River National Forest, Jackson County, Oregon. Plaintiff1 was awarded the contract by the Forest Service, U.S. Department of Agriculture in the original amount of $974,045.15. The work, to be completed in about a year, consisted of construction of 8.42 miles of road in a wilderness area, including all necessary clearing and grubbing, excavation, embankment and compaction, installation of corrugated metal pipe, and placing of base course rock.

Seven claims arising out of the project were appealed to the Department of Agriculture’s Board of Contract Appeals (AGBCA) following adverse decisions thereon by the contracting officer in the Forest Service. These appeals are generally described, in defendant’s brief, as follows:

1. Class I, Differing Site Conditions. Excess costs relating to item 51(1) of the contract, unclassified excavation.
2. Excess costs in developing the Little Applegate Quarry.
3. McDonald Creek Excavation (shooting and blasting subsurface rock).
4. Engineering errors and delays.
5. Excess costs relating to item 50, clearing and grubbing.
6. Underpayment for contract item 209, including porous backfill material.
7. Underpayment for item 151, watering.

All of these appeals were denied by the AGBCA except No. 6, above. Plaintiff sought judicial review of the Board’s decision on Nos. 1, 3, 4 and 5, above, and abandoned No. 5 after filing of the petition herein. The Board’s decision on the remaining three appeals (Nos. 1, 3 and 4) is before the court for review, measured against the standards set forth in the so-called Wunderlich Act.2 They are hereinafter reviewed in that order.

No. 1 — Differing Site Conditions

Statement of Facts

General Provision 4 of the contract provides in pertinent part as follows:

“4. Differing Site Conditions
(a) The Contractor shall promptly, and before such conditions are disturbed, notify the Contracting Officer in writing of: (1) Subsurface or latent physical conditions at the site differing materially from those indicated in this contract.... The Contracting Officer shall promptly investigate the conditions, and if he finds that such conditions do materially so differ and cause an increase or decrease in the Contractor’s cost of, or the time required for, performance of any part of the work under this contract, whether or not changed as a result of such conditions, an equitable adjustment shall be made and the contract modified in writing accordingly.” (Emphasis supplied).

Plaintiff claims that it encountered unanticipated solid rock when excavating between stations 166 and 172 along the alignment of the road. Rock and boulders had been anticipated, but the contractor contemplated that the cut could be made by ripping any rock encountered and without the need for drilling and blasting.

The Forest Service did not purport to directly represent the nature of the material to be excavated. It is described in the contract as “unclassified” excavation, “regardless of the nature of the material excavated.” In the absence of a specific representation in the contract documents regarding the subsurface conditions to be encountered, plaintiff is obliged to rely instead on the cumulative effect of indirect or implied “contract indications which led (us) to believe that the subsurface material would be common.”3

[63]*63General Provision 13 of the contract provides in pertinent part as follows:

Conditions Affecting the Work. The Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof. Any failure by the Contractor to do so will not relieve him from responsibility for successfully performing the work without additional expenses to the Government....

The contractor states that it made “two meticulous prebid investigations of the site.” It offered testimony before the board that "despite the presence of these boulders, Gary (Fox) believed that he would be able to accomplish the cut with a caterpiller (sic) tractor.” This belief was based on inferences which plaintiff drew from three design factors which did not purport to directly describe the type of material to be excavated. Those design factors are (1) compaction factors calculated from the excavation quantities within the balance points, (2) back slope ratios along the road, and (3) the presence at one point of a grouted rip rap headwall.

Compaction factors are derived by dividing the amount of excavation by the amount of embankment between the balance points shown on the plans. The significance of the compaction factors is that the ratio thus derived indicates whether the excavated material will shrink or swell when excavated and then compacted in the embankment. For example, a 1.5 compaction factor would indicate 50% more excavation than embankment, or a 50% shrinkage in the embankment. Common material (soil) ordinarily shrinks when excavated and compacted in embankment, while rock (whether ripped or blasted) would swell when placed in embankment. The predominant compaction factor along the entire Wagner Gap road was greater than 1, suggesting average shrinkage, which plaintiff interpreted as meaning that the excavation therefore involved common material, and not rock.

The second design factor which plaintiff cites was the backslope ratios. These are generally steeper for rock cuts, less steep for stable non-rock material, and flatter for unstable material. For example, a back-slope of one-half to one would describe a steeper slope than one to one. The back-slope ratios for this road were three-quarters to one, except for a short section which was one-half to one. Plaintiff concluded from this that the excavation would for the most part be through common material, with some rock which would be rippable.

Finally, the contract called for placement of a grouted rip rap wall up the backslope at station 170 plus 12. Plaintiff believed that this was designed to protect the embankment from deteriorating, thereby suggesting common material at this point. When rock was later encountered, the grouted riprap headwall was deleted by the Forest Service.

Plaintiff discounts the rock outcroppings admittedly observed during its “two meticulous prebid investigations of the site,” because it also observed what it describes as “deep rooted” trees indicating the rock was not solid. In addition, plaintiff draws attention to a notation in the resident engineer’s diary prior to the commencement of construction, in which the resident engineer appears to be more concerned with the possibility of soil erosion between stations 169.5 and 171.5, than with the possibility of encountering hard rock. That diary note does, however, also describe the material to be excavated as “large boulders and decomposed granite.”

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Bluebook (online)
32 Cont. Cas. Fed. 73,128, 7 Cl. Ct. 60, 1984 U.S. Claims LEXIS 1227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-united-states-cc-1984.