Portable Rock Production Co. v. United States

31 Cont. Cas. Fed. 72,053, 4 Cl. Ct. 495, 1984 U.S. Claims LEXIS 1502
CourtUnited States Court of Claims
DecidedJanuary 31, 1984
DocketNo. 655-81C
StatusPublished
Cited by1 cases

This text of 31 Cont. Cas. Fed. 72,053 (Portable Rock Production 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
Portable Rock Production Co. v. United States, 31 Cont. Cas. Fed. 72,053, 4 Cl. Ct. 495, 1984 U.S. Claims LEXIS 1502 (cc 1984).

Opinion

OPINION

SPECTOR, Senior Judge.

This case arises out of a contract between plaintiff and the United States Forest Service, Department of Agriculture, for construction of the so-called Moonlight Timber Sale Roads in the Willamette National Forest, Lane County, Oregon. The petition (now complaint) sets forth seven causes of action seeking recovery of $158,355 under General Provisions 3 (“Changes”) and 4 (“Differing Site Conditions”) of the contract; and, in the alternative, under breach of contract theories. As the direct result of subsurface water conditions encountered on the project, allegedly misrepresented by defendant, plaintiff claims it experienced substantially increased costs in all phases of its construction work, including log decking, excavation, slash and brush removal, placement of subgrade reinforcement and placement of cushion materials.

The contract provisions cited by plaintiff to support its claims provide in pertinent part as follows:

General Provision 3. Changes (a) The Contracting Officer may, at any time, * * * by written order * * * make any change in the work within the general scope of the contract * * *.
* * ' * * * *
(d) If any change under this clause causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work * * * an equitable adjustment shall be made and the contract modified in writing accordingly * * *.
General Provision 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 or (2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for 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 [497]*497decrease 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.
* sjc * * * *

Evidence addressed to these issues was developed at a four-day trial in Portland, Oregon, April 12 through 15, 1983.1

Statement of Facts

The construction to be performed under this contract consists of about two miles of relatively unsophisticated forest access roads. The so-called “upper road” (.63 miles) was to be constructed along a high ridge and it presented no problem relevant to this case. It is mentioned solely for purposes of comparison. In contrast, the “lower road” (1.37 miles) was constructed along the base of that same ridge, at its juncture with the flood plain of the Willamette River. That is where the water problems occurred, as hereinafter described.

It was originally planned that the roads would be constructed as part of a timber sale, with the Government extending a credit to the purchaser against the purchase price of the timber to cover the cost of constructing the access roads. That plan was abandoned when the credit offered was deemed insufficient. The timber sale did, however, provide this plaintiff with an earlier opportunity to walk the alignment of the roads and to evaluate any difficulties to be encountered. Thereafter on October 24, 1979, the Forest Service solicited bids for a so-called “public works” project directed solely to construction of the roads. Bids were to be submitted on a unit-price, estimated quantities basis.2 The work to be performed consisted of construction staking, clearing and grubbing, excavation, embankment, hauling, installation of culverts and a perforated underdrain, and the placement of an aggregate base or surface course.

After bids were opened on November 26, 1979, the low bidder ($297,033.76) alleged an error in its estimate and was permitted to withdraw. On December 17, 1979, award was made to plaintiff as the next lowest bidder in the amount of $336,311.04.3 The bulk of the work was subsequently subcontracted by plaintiff to Willamette Crushing Company on April 8, 1980 for $225,000.4 Representatives of both plaintiff and Willamette, its subcontractor, were present at a pre-construction meeting on March 18, 1980 to discuss this contract.

After consulting with plaintiff, the Forest Service issued plaintiff a notice to proceed with the work on April 4, 1980. At plaintiff’s request, the Forest Service on April 21, 1980 then suspended all work due to wet ground conditions. The suspension was lifted effective May 19, 1980, and it was then partially reinvoked on June 2, 1980.5 A notice to fully resume the work was issued on June 10, 1980, and the subcontractor, Willamette, began working on the lower road on July 1,1980. By July 11, 1980, Willamette had confirmed to plaintiff by letter a prior verbal notice of its claim based on alleged differing site conditions and defective specifications. The claim was passed on by plaintiff to defendant’s contracting officer, and on July 15, 1980, For[498]*498est Service and Willamette representatives met to examine the work areas in question.6

On another related claim indirectly attributed to the same wet conditions, Willamette complained to plaintiff on August 4, 1980 because of its alleged inability to bum right-of-way slash on the roadway, as required by the contract. It cited weather and fire restrictions. The contract requirement for burning within the right-of-way was claimed to be a defective specification. This claim was likewise forwarded to the contracting officer by plaintiff. On August 13, 1980, following on-site discussions, the Forest Service authorized removal of the slash to another location less than a mile away for later burning.7

The contract required the work to be completed in 210 working days. It was actually completed by plaintiff in less time, namely, in about 151 working days.

Additional Facts and Argument Offered by Plaintiff

Representatives of Willamette examined the project and ground conditions a total of three times, including the earlier-mentioned examination when construction of the roads was first proposed as part of a timber sale. Willamette’s manager saw nothing on that occasion which concerned him on the lower road, with respect to water or related problems that he might encounter. When the project was readvertised as a public works project, Willamette’s estimator again reviewed the site and noted a bog area as “(j)ust a big hole with water in it, really. It was * * * there was water setting there definitely. I had to * * * there were trees, and things, laying over the area, so that I could get across without getting wet.” He could “definitely not” drive his vehicle across it. The bog was, in his testimony, “150 to 200 feet long.”

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Cite This Page — Counsel Stack

Bluebook (online)
31 Cont. Cas. Fed. 72,053, 4 Cl. Ct. 495, 1984 U.S. Claims LEXIS 1502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/portable-rock-production-co-v-united-states-cc-1984.