Arundel Corporation v. United States

• Decision Date: 14 May 1975
• Docket Number: No. 24-73.,24-73.
• Citation: 515 F.2d 1116
• Parties: The ARUNDEL CORPORATION v. The UNITED STATES.
• Court: U.S. Claims Court

515 F.2d 1116

The ARUNDEL CORPORATION v. The UNITED STATES.

No. 24-73.

United States Court of Claims.

May 14, 1975.

Richard H. Nicolaides, Washington, D. C., atty. of record, for plaintiff; J. Cookman Boyd, Jr., Baltimore, Md., of counsel.

Ray Goddard, Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.

Before COWEN, Chief Judge, and KASHIWA and BENNETT, Judges.

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

PER CURIAM:

This case comes before the court on plaintiff's request, filed November 1, 1974, for review by the court of the recommended decision, filed August 2, 1974, by Trial Judge Thomas J. Lydon, pursuant to Rule 166(c) on plaintiff's motion and defendant's cross-motion for summary judgment and on defendant's motion, filed January 14, 1975, for adoption by the court of the recommended decision. The case has been submitted to the court on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the trial judge's recommended decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. It is, therefore, concluded that plaintiff is not entitled to recover, plaintiff's motion for summary judgment is denied, defendant's cross-motion for summary judgment is granted and plaintiff's petition is dismissed.

OPINION OF TRIAL JUDGE

LYDON, Trial Judge:

On December 6, 1965, plaintiff entered into a contract with defendant, acting through the Department of the Army, Jacksonville, Florida District, Corps of Engineers, wherein it agreed to construct, for the contract price of $1,814,258, some 10.4 miles of levee along the northeast side of Lake Okeechobee in Martin and Okeechobee Counties, Florida. The levee, designed for flood protection purposes, was to be constructed from material to be obtained from a continuous borrow area parallel to and on the landside of the levee. During excavation of the borrow material, plaintiff alleged that it had encountered changed conditions materially different from subsurface conditions indicated in the contract documents. Specifically, plaintiff alleged it encountered a materially greater quantity of rock than was indicated by the contract documents. Plaintiff's claim based on changed conditions was denied by the contracting officer on August 28, 1968, and thereafter denied by the Corps of Engineers Board of Contract Appeals (hereinafter the Board) on January 8, 1971 (71-1 BCA # 8669). Plaintiff herein seeks review of the Board's decision that it did not encounter changed conditions during contract performance pursuant to the standards of the Wunderlich Act (68 Stat. 81 (1954), 41 U.S.C. §§ 321 and 322 (1970)). Plaintiff maintains that the Board's decision was arbitrary and not supported by substantial evidence. It claims entitlement to compensation for 97 additional working days resulting from the changed conditions it encountered in the amount of $1,422,242. In the alternative, plaintiff contends it is at least entitled to compensation for 82 additional working days in the amount of $1,202,366. After a careful review of the administrative record and the briefs of the parties, it is concluded that the Board's determination that plaintiff did not encounter changed conditions¹ during contract performance is entitled to finality in accordance with the Wunderlich Act.

I.

Plaintiff's Florida District Manager, James W. Wilkerson (Wilkerson) was responsible for assembling information pertinent to the submission of plaintiff's bid on the proposed levee work. In this bid preparation work, Wilkerson considered information germane to the borrow area from a number of sources, including 26 boring logs furnished as contract documents by defendant,² 15 additional borings at locations which were between or offset from the 26 Government borings referred to above made by plaintiff during its prebid site investigation, and pertinent geological publications and maps from both the United States Geological Survey and the State of Florida Geological Survey. Wilkerson was not a geologist, but had considerable experience in dredge excavation work.³ The Board found, and it is uncontested herein, that plaintiff made an adequate prebid site investigation and that the contract documents fairly represented the information available to defendant as to site and subsurface conditions at the various core boring locations. Nor is there any dispute that the subsurface investigations made by the Government, as manifested in logs of 26 core borings within or immediately adjacent to the continuous borrow area, properly portrayed the subsurface condition at each bore hole location and that there were medium hard, hard and very hard formations of rock, among other materials, within the limits of the borrow area. Moreover, it is clear that plaintiff's borings in general confirmed the data reflected in the Government's borings. Indeed, the additional borings made by plaintiff demonstrated that the various strata reflected in the Government's boring logs were discontinuous and subject to material variations within relatively short distances.

In his bid preparation work, Wilkerson divided the borrow area into nine sections and calculated the number of days he estimated it would take to excavate each section. Wilkerson's time projections were based on his estimate of the ratio of easily dredged material to the indicated quantity of rock manifested by the subsurface information available to him. Wilkerson placed great reliance, in arriving at his estimates, on past production records on other excavation projects performed with a hydraulic dredge called the "Admiral." He also relied on his own prior experience in dredging work. His own prior experience took on greater import when a new hydraulic dredge, called "The General," which had never been used previously, was scheduled for use on this project. Accordingly, prior production records of work done by the Admiral were less significant than would be the case if the Admiral had been assigned to the levee project. With the new dredge, Wilkerson had to rely on its anticipated unproven design capacity. Wilkerson's daily estimated volume of excavation production was 48,000 cubic yards in sections evaluated as 98 percent or more sand, 38,000 cubic yards in sections evaluated as having 12 to 14 percent rock, and 22,000 cubic yards in section 9, where the boring logs indicated some 31.7 percent rock. Wilkerson estimated that 240 days would be required to excavate the estimated 9,671,700 cubic yards of material in the borrow area. This would indicate that plaintiff would have to excavate an average of 40,300 cubic yards per day. The fact that the dredge was used in the borrow area a total of 97 days more than the estimated 240 days is claimed by plaintiff to be due solely to the presence of changed conditions.

Dredging operations began on April 1, 1966, and work proceeded smoothly through sections 1, 2 and 3. The Government's boring logs for the area covered by these sections (station 924 + 30 through 746 + 50) indicated that no rock would be encountered and plaintiff found that the material actually excavated corresponded with the data reflected on the logs. While working in section 4, on or about July 14, 1966, plaintiff contends it began to encounter substantially greater quantities of rock than it believed was indicated in the contract documents. With the exception of some eleven days in November 1966, plaintiff alleged it continued to experience more rock than it anticipated until it completed its dredging operations on or about March 11, 1967.⁴

There are two separate areas in which plaintiff claims it encountered changed conditions. The first area is located between stations 746 + 50 and 568 + 50 (sections 4 and 5) and involved work performed from July 14, 1966 until November 11, 1966. The Government's boring logs indicated the presence of rock in these sections in varying degrees and at varying depths. The second area is located between stations 540 and 401 + 50 (sections 7, 8 and 9) and involved work performed from November 25, 1966 to March 11, 1967. The Government's boring logs indicated the presence of rock in these sections in varying degrees and at various depths.

In light of the rock indications on the contract boring logs, plaintiff did not contend that the presence of rock in the borrow area constituted a changed condition. Indeed, plaintiff anticipated encountering rock and that is why it had a rock cutter available for installation on the dredge. It did contend that the quantity of hard and very hard rock in some sections, and the overall ratio of rock to other materials, greatly exceeded that which it anticipated from its examination of the contract documents and other information available to it in its prebid investigation. While plaintiff contends it maintained records which segregated the materials excavated, such records were not available at any time material herein.⁵ Accordingly, plaintiff relied on expert testimony to estimate the percentage of rock it actually encountered in dredging material from the borrow area. These estimates, which exceeded the rock estimate indications in the contract drawings, formed the core of plaintiff's argument to the Board that it encountered substantially greater quantities of rock than it reasonably anticipated from a review of the contract documents.

Plaintiff employed a geologist, Dr. H. Kelly Brooks, to study the borrow area in question. Dr. Brooks was an Assistant Professor of Geology at the University of Florida and also served as a consultant at various times on geological matters. The borrow area was under water at the time of Dr. Brooks' study in March-May 1967 and his study was directed at the banks (east and west) of the canal created by the excavation of the borrow area in question. Dr. Brooks used scuba diving gear and artificial light to...