January 31, 1964 covers the time and hourly rental rates for various types of equipment, as well as the time and hourly rates for foreman and common labor involved. Presumably it was not feasible for the contractor at that late date to make any distinction between those additional costs of excavation which were attributable to removal of rock and removal of permafrost, compared with what it would have cost if no rock or permafrost had been encountered. Moreover, there is no information in the contractor's claim or appeal instruments or elsewhere in the appeal file as to the total actual costs incurred by the contractor in excavating the areas involved, nor as to the quantities or sizes of rock or boulders excavated, nor as to the basis on which the contractor determined to assign to the additional work the particular amounts of work-hours stated in its letter. The submission of proof concerning such matters would be vital in order to arrive at any equitable adjustment of the claim. The contractor does not assert that there was any misrepresentation by the Government concerning the presence or absence of permafrost, apart from the fact that the possibility of its presence was not mentioned in the contract. Nor does the contractor claim that the presence of rock or permafrost was unusual in the vicinity of the site. Likewise, it is not stated that the existence of rock or of permafrost in the region of the work site was unknown to the contractor, prior to submission of its bid. The contracting officer denied the claim in his letter decision of March 9, 1962, on the ground that the specifications, as modified prior to receipt of any bids, provided as follows: 1-04 Excavation. Any reference in the specifications to the definition of rock excavation shall be disregarded; all excavation required to be performed under the contract shall be considered to be paid for under the lump sum contract price and no adjustment will be made in the contract for excavation of any nature. (Italics added.) Prior to such modification, the specifications provided in pertinent part as follows concerning rock excavation: All material shall be removed by the Contractor without additional cost except for material herein defined as rock. If rock is encountered the contract price shall be adjusted. a. Rock Excavation. Rock is defined as (1) boulders over 11⁄2 cubic yards in volume and (2) any other material in such condition as to require the use of explosives or systematic drilling for removal. The contracting officer denied the claim on the additional ground that- *** at no time during the process of excavating this material was any claim made by you, either formal or informal, to the Contracting Officer, for additional payment. * * * The contractor appealed timely by letter of April 9, 1962. Although the contractor's claim and appeal papers do not identify the claim as being presented under the Changed Conditions clause (Clause 4 of Standard Form 23A) of the contract, that clause is the only possible source of relief in the contract for claims based on subsurface conditions.2 If, however, the contractor did not intend to base its claim on the Changed Conditions clause, but instead claims that the alleged acts or omissions of the Government amounted to an actionable misrepresentation, entitling the contractor to additional compensation over and above the contract price, then the Board would not have jurisdiction to consider such a claim.3 That type of claim is one for which recourse, if any, would have to be sought from either the Comptroller General or the Courts. Only in a case where the alleged misrepresentation forms the basis of a claim for which relief is specifically provided in the contract, as in the Changed Conditions clause, does the Board have jurisdiction concerning a claim of misrepresentation." The Board's capacity to grant relief must be found within the "four corners" of the contract." In substance, the contractor's claim is based on alleged misrepresentation by the Government concerning the presence of subsurface It reads as follows: "The Contractor shall promptly, and before such conditions are disturbed, notify the Contracting Officer in writing of: (1) subsurface or latest 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 so materially differ and cause an increase or decrease in the cost of, or the time required for, performance of this contract, an equitable adjustment shall be made and the contract modified in writing accordingly. Any claim of the Contractor for adjustment hereunder shall not be allowed unless he has given notice as above required; provided that the Contracting Officer may, if he determines the facts so justify, consider and adjust any such claim asserted before the date of final settlement of the contract. If the parties fail to agree upon the adjustment to be made, the dispute shall be determined as provided in Clause 6 hereof." 3 Cf. Martin K. Eby Construction Co., Inc., IBCA-355 (March 8, 1963), 1963 BCA par. 3672, 5 Gov. Contr. 183 (e), and cases cited therein. Jensen-Rasmussen and Co. and B-E-C-K Corp., IBCA-363 (March 14, 1963), 1963 BCA par. 3687, 5 Gov. Contr. 183 (e), and cases cited therein. Cf. Morgen & Oswood Construction Co., Inc., IBCA-389 (November 21, 1963), 70 I.D. 495, 1963 BCA par. 3945. Martin K. Eby Construction Co., Inc., note 3, supra. Accord: Joseph F. Monsini, Jr., ASBCA No. 6928 (October 23, 1961), 61–2 BCA par. 3197, 4 Gov. Contr. 127(e). January 31, 1964 rock and permafrost at the site of the work. The particular form of the misrepresentation as to rock is claimed to be contained in the modification of the specifications, quoted supra, to the effect that any reference to the definition of rock excavation shall be disregarded; that all excavation performed should be paid for under the lump sum bid price; and that no adjustment would be made for any kind of excavation. Basically, it is the contractor's theory that the Government indicated by the foregoing modification that no rock would be encountered in the excavations. The contractor is correct in stating that the existence of rock, boulders and permafrost is not mentioned in the specifications as modified, and the Government does not contend that any of these conditions are shown on the contract drawings. The contractor also states that the Government "was aware of the presence of rock and permafrost" by reason of "the fact that shortly before the letting of the referenced contract, the Park Service built an apartment house close to the work covered by this contract, and boulders and frost were encountered in the excavation and footings for the structure. The owner [presumably the Government] had ample opportunity to observe these conditions and to evaluate the added cost to the contractor for this referenced contract. ***" Hence, the alleged misrepresentation as to permafrost consists merely of its non-mention by the Government. The basic concept underlying the Changed Conditions clause is that the long-term interest of the Government, in attempting to eliminate excessive contingency allowances from bid prices, justifies the Government in assuming a portion of the risk concerning subsurface conditions. The portion of the undertaking as to which the Government assumes the risk is that the subsurface conditions will conform to those described in the contract, or, if not there described, to normal conditions for the area involved." The risk thus assumed by the Government with respect to conditions not described by the contract is the risk that such conditions may turn out to be abnormally bad; the Government does not guarantee by this clause that conditions will prove to be abnormally good. Hence, the contractor's bid price should not reflect assumptions that the subsurface conditions will be either better or worse 7 Ruff v. United States, 96 Ct. Cl. 148, 164 (1942). Erhardt Dahl Andersen, IBCA-229 (July 17, 1961), 68 I.D. 201, 61-1 BCA par. 3082, 3 Gov. Contr. 505, and cases cited therein. We quote the elegant formula stated therein: "The risk thus assumed by the Government with respect to [changed] conditions not described in the contract is, however, the risk that they will turn out to be abnormally bad; not the risk that they will fall short of being abnormally good." than those conditions "ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract," unless he knows or should know that unusual conditions do actually exist at the site." In such a case, where the bidder is aware or should have been aware of conditions at or near the site, his bid price should reflect the anticipated cost of performing the contract under such conditions. As the Board has previously said: The purpose of article 4, is, however, to protect prudent contractors against unforeseen abnormalities, and a contractor who ignores the warnings in the specification and all warning signs that would have been revealed by a reasonably thorough investigation is not entitled to the benefit of the article.10 Similar considerations are expressed in Standard Form 22, “Instructions to Bidders," attached to the Invitation for Bids. Article 1 states that explanations will be furnished to bidders as to the meaning or interpretation of drawings and specifications. Article 2 provides for visiting the site of the work. These two articles read as follows: 1. Explanation to Bidders. Any explanation desired by bidders regarding the meaning or interpretation of the drawings and specifications must be requested in writing and with sufficient time allowed for a reply to reach them before the submission of their bids. Oral explanations or instructions given before the award of the contract will not be binding. Any interpretation made will be in the form of an addendum to the specifications or drawings and will be furnished to all bidders and its receipt by the bidder shall be acknowledged. 2. Conditions at Site of Work. Bidders should visit the site to ascertain pertinent local conditions readily determined by inspection and inquiry, such as the location, accessibility and general character of the site, labor conditions, the character and extent of existing work within or adjacent thereto, and any other work being performed thereon. While Standard Form 22 provides that the instructions contained therein "are not to be incorporated in the contract," Article 2 is expressly excepted from this general language by Clause 30, entitled "Site Visitation," of the instant contract. That clause reads as follows: Failure to visit the site (as provided in Article 2 of Standard Form 22, Instructions to Bidders) will in no way relieve the Contractor from the necessity of furnishing all equipment and materials and performing all work required for the completion of the contract in conformity with the specifications. 9 Cf. Otis Williams and Co., IBCA-324 (September 5, 1962), 69 I.D. 135, 1962 BCA par. 3487, 4 Gov. Contr. 471. 10 J. A. Terteling & Sons, Inc., IBCA-27 (December 31, 1957), 64 I.D. 466, 484, 57-2 BCA par. 1539. January 31, 1964 In a letter dated September 3, 1959, from the contractor to Mr. D. D. Jacobs, Superintendent, Mt. McKinley Park, the first paragraph thereof indicates that the writer of the letter, Mr. McGee, had visited the site: (a) In connection with the storage of construction materials, we would like to use the warehouse at the railway station that we surveyed when I visited the site. Thus, it would appear that the contractor had availed itself of the opportunity to investigate the conditions at the site. The contractor nowhere alleges that the subsurface conditions at the apartment house nearby could not, during this investigation, have been "readily determined by inspection and inquiry," within the meaning of Standard Form 22. In fact, the contractor does not even allege that at the time of bidding it lacked actual knowledge of the rock and permafrost conditions which, it asserts, had been found at the apartment house. The burden of the contractor's complaint and the basis of its claim is that the possibility of encountering rock and permafrost were not specifically set out in the contract specifications or drawings. Yet the contractor does not assert that it was actually misled by that omission."1 The contractor's main argument, set forth in its letter of July 25, 1961, is that There is a well known and authenticated rule of specification writing that states that if the owner has knowledge of sub-surface conditions that change the progress of the Contractor's work, or affects his cost, it must be set out fully in the specifications. * * * The contractor's statement of the rule is incorrect. There is no duty on the part of the Government to describe subsurface conditions about which the contractor knew, or should have known from the available information, before bidding.12 Here, there is no evidence that any test borings or similar investigations were performed by the Government. Likewise, there is no showing that the subsurface conditions at the job site and in the nearby apartment area were unknown to the contractor or unascertainable through an investigation of the type contemplated by Standard Form 22. It is also the opinion of the Board that the elimination by the Government of the contract provisions for price adjustment for rock excavation did not constitute a representation that no rock would be encountered in the excavation work under this contract. It was 11 See Ivy H. Smith Company v. United States, Ct. Cl. No. 273-58 (June 7, 1961). 12 Leal v. United States, 149 Ct. Cl. 451, 459-62 (1960). |