Pleasant Excavating Co. v. United States

229 Ct. Cl. 654, 1981 U.S. Ct. Cl. LEXIS 599, 1981 WL 22092
CourtUnited States Court of Claims
DecidedDecember 8, 1981
DocketNo. 13-81C
StatusPublished
Cited by4 cases

This text of 229 Ct. Cl. 654 (Pleasant Excavating 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
Pleasant Excavating Co. v. United States, 229 Ct. Cl. 654, 1981 U.S. Ct. Cl. LEXIS 599, 1981 WL 22092 (cc 1981).

Opinion

This case is brought under the Wunderlich Act, 41 U.S.C. §§ 321, 322, on the record and the briefs submitted in support of cross-motions for summary judgment. Plaintiff, Pleasant Excavating Co., seeks review of the United States Department of Agriculture Board of Contract Appeals (Board) decision denying its claim for an equitable adjustment under the changed conditions clause of its contract with the defendant. We grant defendant’s motion supporting the Board’s decision and deny plaintiffs.

The agreement between the parties required Pleasant to build an earthen dam and spillway in the Pohick Creek Watershed in Northern Virginia. The contractor was to use soil excavated from borrow areas near the site. The materials available to prospective bidders included drill logs (soil samples analyzed for general composition and mineral and moisture content), site maps and a geologic report describing the ground and subsurface conditions in this area. The test pit data noted the presence of mottled soil and alluvium soil at elevations higher than the indicated water level.

Under the contract, only earth fill with a specified optimum moisture content could be used in the dam construction. In the spring of 1977, plaintiff encountered an unacceptably high moisture content in the soil which necessitated its drying most of the earth prior to using it. This desiccative process and the decreased excavation efficiency due to the unexpected wetness slowed down the operation, causing substantially increased costs.

On May 20, 1977, plaintiff filed a claim for an equitable adjustment to recoup the increased costs. It alleged that the wet conditions encountered were different from what was represented in the contract documents; this would fall under the differing site conditions clause in the agreement, requiring reimbursement by the Government for these costs. The Contracting Officer and the Board denied this claim and the contractor seeks review by this court. The question here is whether the Board permissibly found that Pleasant should have known from the test pit data and geologic report that it would encounter wet borrow conditions.

[656]*656The Board found that the test pit data was sufficient to put a reasonably prudent bidder or contractor on notice as to the potentially wet conditions in the borrow areas. The decision indicates that the tribunal did not impose an unreasonably high standard of knowledge on plaintiff but looked only to what could be expected of a reasonably competent contractor, not a soils expert. The first issue is whether the Board’s expectation that a layman should be familiar with the technical terms of a contract, including "mottles” and "alluvium,” was incorrect as a matter of law.

Contractors are not bound to know that which only an expert could derive from bidding materials. Kaiser Industries Corp. v. United States, 169 Ct. Cl. 310, 324, 340 F.2d 322, 330 (1965). Moreover, they are not expected to conduct their own expensive tests. Foster Constr. C.A. v. United States, 193 Ct. Cl. 587, 612-13, 435 F.2d 873, 886 (1970). The knowledge imputed to a contractor is the understanding that a reasonably competent bidder would have from reading the contract documents. Stock & Grove, Inc. v. United States, 204 Ct. Cl. 103, 119, 493 F.2d 629, 637 (1974). Contractors, however, are presumed to understand the complexities of their undertakings. Tony Downs Foods Co. v. United States, 209 Ct. Cl. 31, 42-43, 530 F.2d 367, 374 (1976); Massachusetts Port Authority v. United States, 197 Ct. Cl. 721, 726-27, 456 F.2d 782, 784 (1972). This includes an obligation to study the materials given to prospective bidders. Wickham Contr. Co. v. United States, 212 Ct. Cl. 318, 323, 546 F.2d 395, 398 (1976).

It seems reasonable that a bidder and contractor in this field should understand contract specifications related to water levels. Since the cost estimate for excavating is partially dependent upon the amount and level of subsurface moisture, a comprehension of the terms indicating wet conditions is crucial. Test borings, the primary source of such information, are usually considered of paramount importance to a person needing earth fill for construction. United Contractors v. United States, 177 Ct. Cl. 151, 162, 164, 368 F.2d 585, 596, 597 (1966). The absence of any indication of water in the test pit data is often considered a representation by the Government that optimum conditions will be encountered. Id.; Woodcrest Constr. Co. v. [657]*657United States, 187 Ct. Cl. 249, 255-56, 408 F.2d 406, 410 (1969), cert. denied, 398 U.S. 958 (1970). Conversely, evidence in the sample drillings of excessive moisture should put a contractor on notice of less than perfect conditions. Woodcrest, 187 Ct. Cl. at 254, 408 F.2d at 409 (dictum). It follows that plaintiff, as a reasonably competent contractor, should have understood the test pit data, including the terms mottles and alluvium. See Leal v. United States, 149 Ct. Cl. 451, 456, 460-62, 461 n.l., 276 F.2d 378, 381, 383-84, 384 n.1 (1960).

The next issue is whether the water level encountered should have been reasonably anticipated by a careful study of the bidding materials.1 The core samples did indicate that, at the time of the tests, the water table level was below the elevation where Pleasant intended to excavate, leading plaintiff (it says) to believe that the amount of soil moisture would be ideal for its purposes. But the descriptive notations accompanying the data significantly qualified any water level representation. The very frequent use of the term mottled indicated that the water could potentially reach higher elevations.2 The only ambiguity or contradiction in the bidding materials was a result of Pleasant’s failure to comprehend the implications of this repeated word.3 A contractor cannot persuasively claim that it has been harmed by one misleading indication when that statement or fact has been qualified or negated other places in the instrument. Flippin Materials Co. v. United States, 160 Ct. Cl. 357, 312 F.2d 408 (1963). As we now discuss, none of Pleasant’s contentions persuades us otherwise.

Plaintiff argues that the only evidence that it should have understood the term "mottles” comes from soil experts unqualified to testify as to what a reasonable contractor should have known. It is true that government [658]

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229 Ct. Cl. 654, 1981 U.S. Ct. Cl. LEXIS 599, 1981 WL 22092, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pleasant-excavating-co-v-united-states-cc-1981.