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November 10, 1964
All piles shall be concreted "in the dry." If moisture conditions prevent drilled holes from being concreted "in the dry," casings shall be furnished, and all water pumped from holes before placing concrete. Remove casings while placing concrete. Elephant trunks long enough to reach within three feet of the bottom of the hole, and of such size and flexibility to be maneuvered inside the reinforcement cage shall be used. The concrete price, per lin. ft., for "Concrete Piles Cast-in-Drilled Holes" shall include the drilling, dewatering, temporary casing (if required), reinforcement steel, forming for pile extension, all concrete, and any other materials and labor required to complete the work.
This note on the drawings, the Government contends, was a clear forewarning that underground water might be encountered in quantities which would necessitate the use of casing and of other dewatering measures.
The Government also regards as pertinent the "Conditions Affecting the Work" clause (Clause 13) of the General Provisions. This clause reads as follows:
The Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof. Any failure by the Contractor to do so will not relieve him from responsibility for successfully performing the work without additional expense to the Government. The Government assumes no responsibility for any understanding or representations concerning conditions made by any of its officers or agents prior to the execution of this contract, unless such understanding or representations by the Government are expressly stated in the contract."
The foregoing summary of the established facts and salient contract provisions reveals nothing that, in the opinion of the Board, could be considered a changed condition within the meaning of Clause 4. That clause provides for the making of an equitable adjustment in the contract price if conditions are encountered during performance of the work which fall within either of the two categories of changed conditions defined in the clause. The first category consists of, and is limited to, "subsurface or latent physical conditions at the site differing materially from those indicated in this contract." The second category consists of, and is limited to, "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."
Neither the expression "subsurface or latent physical conditions at the site" nor the expression "unknown physical conditions at the site" are apt methods of describing weather phenomena, such as heavy rain, high winds, or low atmospheric temperature. This has been recog
3 Generally similar provisions appear in Clause 2 of Standard Form 22 (January 1961 edition) entitled "Instructions to Bidders." This form, however, is not among the documents which are incorporated in the contract by express reference.
nized in the decided cases, which have consistently held that neither of the two categories of changed conditions comprehends storms, floods, or other forms of abnormal weather. Likewise, it has been held that neither of the two categories comprehends alterations in the physical features of the work site, such as the scouring of a river bed to a greater depth, that are caused by weather phenomena after initiation of the process of contract formation."
Appellant does not contend that the test hole data, as set forth in Drawing C-7, is an inaccurate indication of the subsurface conditions which existed at the time when the test holes were driven. Nor does the record permit any inference that such data was inaccurate as to those conditions. The Government does not contend that the subsurface conditions actually encountered in the holes for the piles conformed to the test hole data, insofar as the volume of underground water and resultant propensity to caving are concerned. From the record it may reasonably be inferred that the difference between the indicated conditions and the actual conditions was due, first, to the occurrence of the rainy season, and, second, to the abnormally heavy rainfall of August 1963. Of these two causes, the second would appear to have been the more important.
The performance of the pile operations at a normally wetter time of the year than that when the test hole data had been obtained plainly was not a changed condition. It does not fall within the first category, since the contract contained no indication or representation concerning the season of the year when the test holes had been driven. It does not fall within the second category, since the annual recurrence of the rainy season is, of course, not an unusual or out-of-the ordinary event." There is no showing that appellant before bidding sought information as to the time of year when the test holes were driven, or that such information, if sought, would have been refused. In these circumstances the risk that the test holes might have been driven during a normally drier period of the year than the period consumed in contract
• Arundel Corp. v. United States, 103 Ct. Cl. 688 (1945), cert. denied 326 U.S. 752 (1945) (both categories); Inter-City Sand & Gravel Co., IBCA-128 (May 29, 1959), 66 I.D. 179, 194–95, 59-1 BCA par. 2215, 1 Gov. Contr. pars. 430-32 (both categories); BarnardCurtiss Co., IBCA-82 (August 9, 1957), 64 I.D. 312, 314-15, 57-2 BCA par. 1373 (second category); Morrison-Knudsen Co., CA–170 (October 20, 1952) (second category); Fred G. Koeneke, ASBCA No. 3163 (June 14, 1957), 57–1 BCA par. 1313 (both categories); Kuckenberg Construction Co., Eng. C&A Board No. 507 (September 14, 1954) (second category); Annot. 85 A.L.R. 2d 211, 229 (1962).
5 Arundel Corp. v. United States, 96 Ct. Cl. 77, 115-16 (1942) (first category); Lam Building Corp., ASBCA No. 3361 (May 2, 1957), 57-1 BCA par. 1308 (both categories); Ray Millis, Eng. C&A Board No. 597 (September 1, 1954) (second category); Dean 8. Hogden, Eng. C&A Board No. 68 (March 8, 1949) (second category).
• Of. Osberg Construction Co., IBCA-139 (October 16, 1959), 66 I.D. 354, 358, 59-2 BCA par. 2367, 1 Gov. Contr. par. 703.
November 10, 1964
performance was a risk that appellant assumed under Clause 13 of the contract, as quoted above."
The abnormally heavy rainfall of August 1963 and its consequences, in the form of increased flows of underground water and of increased caving, likewise were not changed conditions. We have previously cited some of the many authorities which hold that weather phenomena and their consequences are not changed conditions. The applicability of these precedents to the instant case is reinforced by the note on Drawing C-6, as quoted above. This note, by making provision for the contingency that casing might need to be installed and other dewatering measures taken, clearly precludes reading into the contract any indication or representation that the degree of moisture revealed by the test hole data would remain constant, whatever might be the vagaries of the weather, until the job had been finished.8
Appellant seeks to buttress its claim of changed conditions by allegations to the effect that commencement of the pile operations was delayed because the bridge abutments-which fell outside the scope of its contract-were not ready on time. Specifically, appellant alleges that its crew and equipment had to be removed from the job site during the week ending June 28, 1963, because of incompleteness of the abutments, and that the latter were not actually completed until the middle of July. From these allegations it would seem that such time as may have been necessarily lost on account of the abutments did not exceed one month. Appellant actually began pile operations about October 1, 1963. It does not appear that if the pile operations had been begun one month earlier, less underground water would have been encountered. On the contrary, the subsurface formations would have had one month less within which to dry out after the abnormal rains of August. Since there is no proof that the abutment delay had any adverse effect upon the working conditions actually experienced at the job site, there is no ground upon which that delay could be regarded as buttressing the changed conditions claim.
Even if it could be found that some or all of the alleged increase in the cost of the pile operations was caused by the unfinished state of the abutments, it would still be beyond the competence of this Board to allow additional compensation on account of such alleged increase. Delay on the part of the Government in fulfilling its own obligations under a contract is not a matter for which an equitable adjustment in
7Cf. Larsen-Meyer Construction Co., IBCA-85 (November 24, 1958), 65 I.D. 463, 469–70, 58-2 BCA par. 1987.
8 Cf. Promacs, Inc., IBCA-317 (January 31, 1964), 71 I.D. 11, 17-18, 1964 BCA par. 4016, 6 Gov. Contr. par. 116(a); J. A. Terteling & Sons, Inc., IBCA-27 (December 31, 1957), 64 I.D. 466, 484-85, 57-2 BCA par. 1539.
the contract price may be made under the "Changed Conditions" clause or under any other provision of this contract."
The authorities upon which appellant chiefly relies are United States v. Smith, 256 U.S. 11 (1921) and United States v. Atlantic Dredging Co., 253 U.S. 1 (1920). In the Smith case supra, the Supreme Court allowed recovery of additional compensation in connection with a dredging contract where the contract described the materials to be removed, and where a substantial portion of the materials actually removed did not conform to that description. In the Atlantic Dredging case supra, the Supreme Court allowed recovery where the contract stated that the Government "believed" the materials were as described in the contract, where the Government possessed information which indicated such description to be erroneous, where the Government did not disclose this information to the bidders, and where a substantial portion of the materials actually dredged did not conform to such description. Neither contract contained a "Changed Conditions" clause, and both cases were decided principally upon the basis of the doctrine of misrepresentation.
In contrast, the contract here involved does not purport to describe the volume of underground water or the degree of propensity to caving that might be expected to be encountered in the holes for the piles. It leaves these matters to the individual bidders for determination by each of them in the light of the data appearing on Drawing C-7, of such supplemental data as a reasonable pre-bid investigation pursuant to Clause 13 would disclose, and of any other information which the particular bidder may possess. As has been mentioned, it is not contended that the data obtained through the driving of the test holes was inaccurately recorded on Drawing C-7. Since nothing was misrepresented in the contract, the Smith and Atlantic Dredging decisions are not here in point.
The appeal is denied.
HERBERT J. SLAUGHTER, Acting Chairman.
THOMAS M. DURSTON, Member.
JOHN J. HYNES, Member.
• Commonwealth Electric Co., IBCA-347 (March 12, 1964), 71 I.D. 106, 1964 BCA par. 4136, 6 Gov. Contr. par. 262; Weardco Construction Corp., IBCA-48 (September 30, 1957), 64 I.D. 376, 378-81, 57-2 BCA par. 1440; Lam Building Corp., supra note 5.
PUBLIC SERVICE COMPANY OF NEW MEXICO
Decided November 10, 1964
Rules of Practice: Supervisory Authority of Secretary
The Secretary of the Interior may assume jurisdiction over an appeal to the Director, Bureau of Land Management, without waiting for a decision by the Director.
Rights-of-Way: Generally-Rights-of-Way: Act of March 4, 1911-Power: Generally
The requirement imposed by the Department's regulations on an applicant for a transmission line right-of-way that he agree to permit the Department to utilize surplus capacity in the line or to increase the capacity of the line for the transmission of power by the Department is valid.
Rights-of-Way: Generally-Rights-of-Way: Act of March 4, 1911-Power: Generally
The existence of a contract between a power company and the United States, acting through the Atomic Energy Commission, whereby the company agrees to construct a transmission line from its facilities to facilities of the Commission and the Commission agrees to provide a right-of-way across land under its jurisdiction in Los Alamos County, has no bearing upon and is not affected by conditions imposed by this Department upon a grant of a right-of-way for a portion of the line across public land under the jurisdiction of this Department in Sandoval County.
APPEAL FROM THE BUREAU OF LAND MANAGEMENT
Public Service Company of New Mexico has appealed from a decision dated August 21, 1964, by the manager of the Santa Fe, New Mexico, land office to the extent that the manager required the appellant to agree to the terms and conditions of 43 CFR, 1964 Supp., 2234.4-1 (c) (5) as a condition to the grant of a transmission line rightof-way to the appellant.
Although the appeal would normally be considered as one to the Director of the Bureau of Land Management, jurisdiction over it will be assumed in the exercise of the supervisory authority of the Secretary, and final Departmental action on it will be taken. 43 CFR, 1964 Supp., 1840.0-9(d); United States v. M. V. Browning, 68 I.D. 183 (1961).
Public Service Company applied, pursuant to the act of March 4, 1911, 36 Stat. 1253, as amended, 43 U.S.C. § 961 (1958), for a right-ofway across 2.829 miles of public land in Sandoval County, New Mexico, for the construction of a 115 kilovolt transmission line. The line, which crosses nonfederal land as well, is to extend from generating facilities of the company in Bernalillo County to Atomic Energy Commission facilities located in Los Alamos County, New Mexico.