Shank-Artukovich v. United States

34 Cont. Cas. Fed. 75,372, 13 Cl. Ct. 346, 1987 U.S. Claims LEXIS 162
CourtUnited States Court of Claims
DecidedSeptember 29, 1987
DocketNo. 305-84C
StatusPublished
Cited by22 cases

This text of 34 Cont. Cas. Fed. 75,372 (Shank-Artukovich 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
Shank-Artukovich v. United States, 34 Cont. Cas. Fed. 75,372, 13 Cl. Ct. 346, 1987 U.S. Claims LEXIS 162 (cc 1987).

Opinion

OPINION

SMITH, Chief Judge.

This opinion is issued following trial, extensive post-trial briefing, and oral argument. The dispute arises over several incidents that occurred during the performance of a fixed-price construction contract. This contract was let by the Department of the Interior’s Bureau of Reclamation (Bureau) for the construction of a mile long, hard rock tunnel. The tunnel is known as the Santa Clara Tunnel and it was constructed to carry water from an inland reservoir to coastal California. For the reasons set forth below judgment is awarded to the plaintiff in the amount of $894,-913.

Facts

The contract at issue was originally set for bid under the conventional drill-and-blast method of tunnel construction.1 This was referred to in the contract’s bid sheets as schedule one. Later in the pre-bid process the Bureau, in addition, approved bids under a second schedule. The second bid schedule allowed the use of a tunnel boring machine (TBM), as the principle method of construction. The plaintiff, Shank-Artuko-vich (Shank), a Joint Venture,2 submitted a [348]*348bid under schedule two. Because it’s bid offered the lowest unit price per meter of tunnel length, the contract was awarded to it on August 18, 1981. Soon thereafter plaintiff began construction.

Construction of the tunnel went well except for difficulties encountered in two distinct regions of the tunnel. In all but these two regions the TBM performed well and did not encounter any unforeseen problems. In the two regions in question, the plaintiff alleges that it encountered the ground condition that is termed as running 3 or breastboard 4 ground. In the first claim region at station 20 + 325 the ground began sloughing away from the face of the tunnel and caused a delay in construction lasting from the 8th to the 22nd of February, 1982. More specifically, rock, ranging in size from two feet to six inches, began falling away from the tunnel face without the TBM even operating. This rock also included some fine material and water. As this material was hauled away from the face by the conveyor belt, more material fell away, effectively stopping the tunnel’s forward progress. During this period the tunnel heading was advanced only 76 feet, and approximately 380 cubic meters of muck6 were removed. The sloughing from the face was eventually stopped by drilling holes over the top of the TBM shield7 and pumping grout8 into the area in front of the TBM. About 770 sacks of cement were used in this grouting operation. In the second claim region, at station 24 + 82, the conditions were essentially the same. The only difference being that the situation lasted from the 19th to the 30th of March, 1982, and required 420 sacks of cement to deal with. The total heading advancement for this period was approximately 52 feet. Shank’s average daily progress under usual conditions was 75 feet. Thus, normally it would have only taken 1.7 days to drive the 128 feet that it took twenty five days to drive under the [349]*349conditions encountered in the claim regions. The plaintiff alleges that the conditions described above differed materially from conditions indicated in the contract. This is the basis for plaintiffs first claim.

Upon plaintiff’s completion of the tunnel, the contract called for plaintiff to install steel reinforcement (hoop rebar)9 in areas where the tunnel was surrounded by extremely poor rock. The government, pursuant to the contract, designated nearly fifty percent of the tunnel to receive hoop rebar. However, when Shank refused to remove timber lagging10 and/or spreaders 11 from the tunnel, the government issued an order requiring the contractor to either remove the timber or to install hoop rebar at its own expense. The contractor elected to install the hoop rebar and seek an equitable adjustment under the changes clause of the contract. This forms the basis for the plaintiff’s third claim.12

The plaintiff’s second and fourth claims originate from downward equitable adjustments taken by the contracting officer. The second claim arises because Shank did not install liner plate at the tunnel portals in accordance with the contract. The fourth claim arises out of Shank’s refusal, because of safety reasons, to remove timber lagging or spreaders in most of the tunnel reaches. Each claim will be fully examined below.

Jurisdictional Matters

The court’s jurisdiction over this case is based upon the Contract Disputes Act, 41 U.S.C. § 609(a) (1982). Jurisdiction over claims one and three is not questioned. The government does, however, challenge jurisdiction over claims two and four. As the court understands it, the government is contending that the court does not have jurisdiction to review the contracting officer’s decision to adjust the contract price downward.13 Apparently, the basis of that contention is that Shank never filed a claim complaining of the contracting officer’s action.

When the government seeks a downward adjustment in the contract price, the claim is a government claim. Mutual Maintenance Co., GSBCA No. 7496, 85-2 BCA (CCH) 1118098 (1985). This is so because the government has the burden of proof. Id; see also Nager Elec. Co. v. United States, 194 Ct.Cl. 835, 442 F.2d 936 (1971). Once it is determined that the claim is a government claim, then the contractor has the right to appeal the contracting officer’s decision to this court without first filing a claim with the contracting officer. See 41 U.S.C. §§ 605(a), 609(a) (1982); Gunn-Williams v. United States, 8 Cl.Ct. 531, 534 (1985). It is clear that the government is seeking a downward adjustment of the contract price. It is also true that, as in Mutual Maintenance Co., 85-2 BCA at 1118098, the government has the burden of proof. Thus, this court has jurisdiction over the government’s claims for downward adjustments in the contract price.

[350]*350Differing Site Conditions Claim

The plaintiff in it’s first claim seeks an equitable adjustment under the differing site conditions clause of the contract. That clause provides for recovery in two different situations. A type one claim allows recovery when “subsurface or latent physical conditions at the site [differ] materially from those indicated in [the] contract.”14 A type two claim is awarded when the contractor encounters “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 [the] contract.” The plaintiff alleges, in the alternative, both type one and type two differing site conditions.

In arguing the type two conditions, the plaintiff has no good ground upon which to stand or run. Type two conditions apply when the government has not included specifications in the contract. “Under category two ...

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Cite This Page — Counsel Stack

Bluebook (online)
34 Cont. Cas. Fed. 75,372, 13 Cl. Ct. 346, 1987 U.S. Claims LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shank-artukovich-v-united-states-cc-1987.