PBS&J Constructors, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )

)

PBS&J Constructors, Inc. ) ASBCA Nos. 57814, 57964

)

Under Contract No. W9126G-09-C-0016 )

APPEARANCE FOR THE APPELLANT: John S. Vento, Esq.

Trenam Kernker

Tampa, FL

APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.

Engineer Chief Trial Attorney

Charles L. Webster III, Esq.

Engineer Trial Attorney

U.S. Army Engineer District, Fort Worth

OPINION BY ADMINISTRATIVE JUDGE SCOTT

PBS&J Constructors, Inc. (PBS&JC) appealed under the Contract Disputes Act

(CDA), 41 U.S.C. §§ 7101-7109, from the contracting officer's (CO's) denial of its

$494,962 Type I differing site conditions claim under its contract awarded by the U.S.

Army Corps of Engineers (Corps) for the design and construction of the Whole Barracks

Renewal Complex, Fort Hood, Texas (ASBCA No. 57814), and from the CO's denial of

its $368,063 claim due to the Corps' alleged unwarranted refusal to allow it to use

shallow foundations in certain areas (balcony piers claim) (ASBCA No. 57964). The

Board consolidated the appeals and held a four-day hearing in Fort Worth, Texas. We

decide entitlement only. For the reasons stated below, we deny the appeals.

DIFFERING SITE CONDITIONS CLAIM-ASBCA No. 57814

FINDINGS OF FACT

1. On 5 August 2008 the Corps issued a request for proposals (RFP) for the

subject firm-fixed-price contract for a design/build barracks project (R4, tab 3) 1 The RFP

included the Corps' August 2007 geotechnical report (GTR). PBS&JC submitted a

proposal on 24 October 2008 (R4, tabs l 5A, l 5B; see also R4, tab 3 at 1 of 39; tr. 1134 ).

1

Unless otherwise noted, "R4" refers to the Rule 4 file and the Corps' supplemental

Rule 4 file in ASBCA No. 57814. Some of those documents, e.g., the contract,

also apply to ASBCA No. 57964.

The Corps awarded it the contract on 27 February 2009, in the amount of $32,373,000. It

incorporated the RFP and GTR. (R4, tab 3 at 2, 18 of39, § 1.2., at 209 of796)

2. PBS&JC was a sister company to Peter Brown Construction (Brown). Atkins

North America, Inc. (Atkins), the parent company, had design responsibility. PBS&JC

began doing business as Brown at project start. 2 Kleinfelder Central (Kleinfelder) was

Brown's geotechnical engineer and Alliance Geotechnical Group of Austin, Inc.,

(Alliance) was its geotechnical inspector. Alliance prepared daily activity observation

reports and pier inspection reports. (R4, tabs 7B, 7C at Bates 259-394; tr. 1/36-38, 2/135)

3. The RFP incorporated the Federal Acquisition Regulation (FAR) 52.236-2,

DIFFERING SITE CONDITIONS (APR 1984) clause by reference, which provides concerning

Type I differing site conditions that the contractor is promptly to notify the CO of

"subsurface or latent physical conditions at the site which differ materially from those

indicated" in the contract. If the conditions do differ materially and increase the

contractor's cost or time in performing any part of the contract work, an equitable

adjustment is to be made. The RFP also incorporated by reference the FAR 52.243-4,

CHANGES (JUN 2007) clause. (R4, tab 3 at 6 of 39)

4. For potential time extensions, the RFP included anticipated adverse weather

delays, including four days each in January through June, September and October, and

December, and three days each in July, August and November (R4, tab 3 at 2-3 of 11 ).

5. The RFP required at§ 01 10 00, Statement of Work (SOW), that the contractor

have a licensed geotechnical engineer interpret the GTR and develop earthwork and

foundation recommendations and design parameters and that:

If any additional subsurface investigation or laboratory

analysis is required to better characterize the site or develop

the final design, the Contractor shall perform it under the

direction of a licensed geotechnical engineer .... lf differences

between the Contractor's additional subsurface investigation

and the government provided soils report or the reasonably

expected conditions require material revisions in the design,

an equitable adjustment may be made, in accordance with the

provisions of the Differing Site Conditions clause.

(R4, tab 3 at 31 of 796, ~ 5 .2.2.1.) The engineer was to prepare a final geotechnical

evaluation report, to be part of the contractor's first foundation design submittal (R4,

tab 3 at 31of796, ~ 5.2.2.2., at 108 of796, § 01 33 16, Design After Award,~ 3.5.3.).

2

Like the parties, we usually refer to appellant PBS&JC for convenience.

2

6. The GTR included boring logs, noting that the 19 test holes were drilled in

December 2003 and January 2004, for another project at the site that did not materialize.

The logs identified the nature of the subgrade material through which the test bore was

drilled; the test bore's depth; whether the subgra<;le material caved in or blocked the test

bore; and whether water was present. Ten of the borings were drilled to depths from 21

to 49 feet; nine were drilled from 3 to 10112 feet, referred to by the Corps, although not in

the GTR, as the "deep" and "shallow" borings, respectively. The shallow borings had the

prefix "lOA," Fort Worth's traditional designation for pavement borings. (R4, tab 3 at

209 of796, tab 4 at Bates 2-3, 28-31; tr. 3/231, 241-42) The 19 borings were drilled

across a site of over 12.4 acres, of which the barracks footprint was about 1.5 acres

(tr. 1/49-50; Corps 12/19/12 resp. to app's proposed fact findings (APFF) in ASBCA

No. 57814 (Corps dsc resp.) at 7, ~ 18). The project called for more than 540 drilled

piers, each with an anticipated depth of32 feet (R4, tab 4 at Bates 12; tr. 2/99, 3/231).

7. The GTR stated:

Groundwater conditions were monitored during drilling

operations, immediately upon completion of the test holes,

and after 18-hour and 24-hour observation periods. Static

water levels were measured in six of the nineteen

borings ... with depths ranging from 11.8 feet to 28.5 feet

below existing grade. The remaining test holes were dry or

blocked.

(R4, tab 4 at Bates 3) Static water levels in the six borings were reported as follows:

Boring Static Level, feet

3ST-5440 21.5

8A4C-5445 28.5

8A-5446 11.8

3ST-5447 15.2

8A4C-5450 18.0

8A-5454 13.2

(Id.) The list did not include boring 8A4C-5443, which the log described as "DRY" but

which showed water present (finding 9).

3

8. The GTR continued:

Subsurface conditions representative of the project site

are shown on the boring logs .... actual subsurface conditions in

areas not sampled may differ from those predicted. The

nature and extent of variations across the sites may not

become evident until construction commences, and the actual

construction process may alter subsurface conditions as well.

If variations become evident at the time of construction, [the

Corps] should be contacted to determine if the

recommendations presented in this report need to be

reevaluated.

(R4, tab 4 at Bates 6)

These discussions are provided to the Design-Build

Contractor to develop his foundation and pavement

designs .... It should be noted that the discussions presented

herein are based on the results of the Government

geotechnical field investigation and laboratory testing

program, engineering studies, and previous engineering

experience with similar structures at Fort Hood. The

Design-Build Contractor should consider the information

provided in this report and comply with the requirements and

recommendations presented herein when developing his

foundation and pavement designs. The Design-Build

Contractor may use the subsurface boring log and lab testing

data presented herein as the sole basis to formulate his

foundation and pavement designs, or, at his option, the

Design-Build Contractor may supplement the information

provided herein by his own geotechnical field investigations

and laboratory testing program.

(Id. at Bates 9)

Groundwater should be anticipated during pier

construction. Therefore, the drilling contractor shall be

required to have temporary steel casing and pumps at the job

site prior to construction of the drilled piers.

(Id. at Bates 13)

4

9. Regarding the six borings within the building's footprint (see R4, tab 2 at 9),

the boring logs,§ 15, "ELEVATION GROUND WATER," stated:

8A4C-5443 DRY

8A-5446 AT 11.8' IMMEDIATELY

8A4C-5445 24 HR. CHECK - 28.5'

3ST-5447 AT 15.2'

8A-5448 DRY BLOCKED at 18'

8A4C-5450 SEE BELOW [showing "WATER

LEVEL" at 24 hour check at 18.0'

and open to 33']

(R4, tab 4 at Bates 29-30, Sheets B201, B202) For boring 5443, which came within the

building's footprint when PBS&JC added exterior walkways and balconies to its design

(tr. 1157, 60; finding 54), despite the "DRY" note in§ 15, the log described the "WATER

LEVEL" at the 24 hour check as at 13.5' and the hole as "BLOCKED" at 21.0' (R4, tab 4

at Bates 29, Sheet B201). Although boring 5448 showed no static water level, and

indicated "DRY" in§ 15, it also described the soil as "slightly moist" and "very moist"

(id. at Bates 30, Sheet B202). For boring 5450, the log indicated that there was no

sloughing above 30' (R4, tab 4 at Bates 30, Sheet B202; Corps dsc resp. at 21-22, ii 44).

10. PBS&JC admits groundwater was detected from 11.8' to 28.5' but contends

that the water at 11.8' was not an intrusion but "perched" water (app. 1/28/13 dsc. resp. to

Corps 12/19/12 dsc br. (app. dsc resp.) at 9, ii 24). Wayne A. Eddins, Alliance's project

manager (tr. 2/29-30), who was not an expert witness, described perched water as:

[U]sually ... when you've got a zone of clay and water migrates

down and just sits right there. It [doesn't] go any further and

it doesn't come anywhere else. It just kind of got to that layer

and stopped until it evaporates or migrates horizontally .

... [P]retty much a perched water table is something

that's seasonal, based on rainfalls.

(Tr. 2/120-21) He described "static water" as water that "reached a certain level within

the boring and it stopped" (tr. 2/54). He opined that perched water in a boring does not

indicate that casing will be required (tr. 2/121). Mr. Eddins confirmed that the GTR and

borings did not discuss the quantity of water or provide any information concerning the

type of water flow a contractor could expect to encounter (tr. 2/83).

5

11. PBS&JC understood that, under the Corps' technical regulations, no more

than three inches of water could accumulate in a pier hole prior to the placement of

concrete (tr. 2/50-51, 3/235; see R4, tab 7B at Bates 166-222 ("Less than three inches of

water was present at the time of concrete placement."); see also tr. 2/20-21 ). Temporary

casing keeps the drilled pier hole dry and maintains the integrity of its sidewalls, allowing

concrete placement (see R4, tab 7C at Bates 224-27; app. dsc resp. at 17, ii 40).

12. Joseph A. Williams became PBS&JC's senior project manager in February 2010

(tr. 1133-34), about a year after contract award. On 24 February 2010 the Corps'

Administrative Contracting Officer (ACO) and Resident Engineer, Harvey B. Hammer,

rejected PBS&JC's geotechnical report as unsatisfactory (R4, tab 23; tr. 3/265-66).

13. PBS&JC submitted to the Corps a design analysis dated 2 June 2010 by

Bryan Rose, a licensed geotechnical engineer and Kleinfelder's principal project

representative. PBS&JC ultimately did not proffer Mr. Rose as an expert witness. The

parties agree that PBS&JC used the analysis, based upon the Corps' data, to estimate

soils' potential vertical movement and consolidation, foundations' bearing capacities, and

construction considerations, including deep foundations. (ASBCA No. 57964 (57964)

R4, tab 9 at 35, 58, 60-61; tr. 1/37, 2/253-54, 256, 3/48-49; Corps dsc resp. at 48, ii 131)

Regarding the GTR, the analysis stated at§ 2.4, Subsurface Water:

[G]roundwater levels were monitored during drilling,

immediately upon completion of each boring, and after

18-hour and 24-hour observation periods. Static water levels

were observed in 6 of 19 borings at depths of 11.8 to 28.5 feet

below existing grade. The remaining borings were noted to

be dry or blocked at the time of measurement.

These short-term field observations generally do not permit an

accurate evaluation of subsurface water levels at this location

and should not be interpreted as a groundwater study. It

should be noted that the observations made within the [GTR]

may not represent conditions at the time of construction and

the presence of groundwater may affect certain construction

activities and long-term performance of the foundations. The

quantity of transient water is variable and is dependent on

climatic conditions before and during construction. The

foundation contractor should check the subsurface water

conditions just prior to foundation e?'cavation activities.

6

(57964 R4, tab 9 at 66) It stated at§ 4.4 Drilled Pier Foundation Construction Criteria:

7. Zones of sloughing soils or groundwater may be

encountered within the soil, which could cause

sloughing of pier sidewalls to occur. Thus, we

recommend that provisions be incorporated into the

plans and specifications to utilize temporary steel casing

to control sloughing and/or groundwater during pier

construction should it occur.

(57964 R4, tab 9 at 82)

14. According to Mr. Rose, bore hole collapse or blockage causes include

water, drilling, excavation, and loose soils. Water and blockage indicate a potential,

but not definite, casing need. What governs casing is the relative stability of the

borehole sidewalls, and the volume of water and rate at which it is encountered.

Water in the GTR's borings did not communicate that casings had to be used because

the logs did not provide enough information to ascertain its volume or flow rate.

Mr. Rose was not suggesting that the logs were deficient. He opined that they were

largely consistent with the applicable geotechnical standard of care. (Tr. 2/266-67,

3/12, 19-20, 78, 97)

15. Per Mr. Rose, borings within a building's footprint are considered first and are

the most relevant regarding materials to be encountered, but proximity is less important

where water is concerned. Adjacent borings and any in the project's vicinity are relevant

because water moves regionally through the project site. (Tr. 3/6, 29-31, 80-82, 90) All

water shown in a boring log is relevant:

All water is relevant, whether it be a static groundwater level

table, a perched condition with sufficient quantity, even

though it's not static--it's a transient or temporary condition--

could, when drilling through it, infiltrate into the pier hole and

adversely affect construction and requir[ e] casing.

(Tr. 3/83) However, he opined that, while borings might alert a contractor to the

possibility of encountering water during construction, they do not provide enough

information to ascertain how much will be encountered (tr. 3/7, 79).

16. Mr. Rose, who was experienced with the subsurface conditions at Fort Hood

and its vicinity, found the conditions disclosed in the GTR to be generally consistent with

the two or three previous reports he had done at Fort Hood and with the geological profile

7

one would expect in that region. Kleinfelder did not see anything indicating that it might

need to do a supplemental investigation. (Tr. 2/260, 262-63)

17. According to Ronald Harris, the Corps' supervisor of materials quality

assurance testing at Fort Hood, if a drill hole is blocked, it indicates that the sidewall has

been compromised and, in 99% of the cases, water is involved, usually the reason for the

blockage. He found that every project boring hole from 20-40' showed water, blockage,

or both. In a 1July2010 preparatory meeting with PBS&JC and subcontractors on drilled

piers he advised that they needed casing on site for each anticipated diameter size hole so

they would be ready. (Tr. 3/205, 211-14, 216-17, 233)

18. The parties agree that PBS&JC began drilling and pouring concrete piers on

about 11August2010. Its project superintendent, Ron Hartshorn, arrived on site in late

August 2010. (R4, tabs 7B, 7C at Bates 226, 395; tr. 1/37, 3/115, 118; app. dsc resp. at

17, il 42; app. 1/28/13 balcony piers reply (app. hp reply) at 17, il 89).

19. On 7-8 September 2010 a severe storm occurred. PBS&JC's Quality Control

Reports (QCRs) referred to "extreme weather conditions" (R4, tab 12 at 605, 607), and

recorded a total of 8.25" of rain on the project site (id. at 604-05). Mr. Williams

described it as a "tropic storm" like "a one-in-50-year event" (tr. 1/78). He believed that,

in connection with compaction problems he attributed to a prior contractor, the heavy

rainfall in a short period created unsuitable material that directly related to the amount of

water encountered during drilling. He thought that the effect on the subgrade material

could have resulted in a French drain that impacted 305 drill holes that had immediate

water and were cased and another 239 that were cased although no water was visible at

first (see finding 20). Only four holes did not contain water. (R4, tab 12 at Bates 604-05;

app. 2nd consol. supp. R4, tab A-021 at 1; ti'. 1/63-64, 68, 70-74, 78-79, 175; Corps dsc

resp. at 7, il 17)

20. Most often when drilling began water would start coming in the pier sidewalls

at differing rates and elevations. In the 305 holes where water was present, casing was

required because it was coming in "so fast" according to Alliance's Mr. Eddins (tr. 2/49).

In the 239 holes where no water was present initially, after one to five hours, there were

saturated soils and sidewalls and water at the bottom of the pier that could not be pumped

down to an acceptable level. Terry Herzog, of Herzog Foundation Drilling (Herzog), a

subcontractor to PBS&JC's subcontractor Gibson Concrete (Gibson), was the project's

drilling superintendent. Herzog pumped out the holes the first day or so but thereafter did

not try pumping because "the water was coming in too fast and caving off the sides"

according to Mr. Herzog (tr. 2/9). Herb Morgan, the Corps' quality assurance inspector,

recommended that even the holes that initially did not contain water be cased. PBS&JC,

Gibson, Alliance and Herzog all concurred. PBS&JC ultimately had to case most of the

pier holes because of significant groundwater intrusion, unstable subgrade materials, or

8

both. (Tr. 1143-44, 66-67, 2/5-10, 24-26, 44-45, 49-51; app. dsc resp. at 18, ~ 44; see also

R4, tab 7C at Bates 395-96)

21. PBS&JC's QCRs mentioned groundwater at times (R4, tab 12 at Bates 543,

546,548,553,556,558,560,563,566,569,572, 574,577,580,583,587,589, 592,595,

598). Gibson's daily reports, under "PROBLEMS/UNUSUAL CONDITIONS," mention

water or casing on 12, 13, 17 and 18 August 2010 but do not mention groundwater

concerning pier drilling thereafter, through 16 November 2010 (R4, tab 7A at Bates 62,

63, 65-130). Alliance's daily reports for 13 August 2010 through 16 November 2010

regularly state that "groundwater infiltration was observed" in the piers being drilled

(e.g., R4, tab 7B at Bates 162, 222). They do not mention the amount, the infiltration

rate, or the elevation at which water was encountered. None of these documents

characterize the groundwater as immediate, massive or continuous.

22. By letter of 11 January 2011 to the Corps' project engineer, Andy Heinchon,

PBS&JC submitted a $494,962 request for equitable adjustment (REA) alleging a Type

I differing site condition regarding the drilled piers. It did not request more time. By

letter of 28 January 2011 to ACO Hammer, it converted its REA into a CDA claim,

which it certified on 4 February 2011. (R4, tab 7C at Bates 224, 227-28, tabs 8, 10;

tr. 4/86)

23. According to PBS&JC's claim, the GTR and RFP "clearly state that a deep

foundation system will be required" and the GTR, "while limited," provided 19 borings to

depths of up to 49' (R4, tab 7C at Bates 224). The GTR indicated that ground water was

in 6 of the 19 borings, from 11.8' to 28.5', and "it was reasonable to infer that

groundwater was present to some extent" (id.). Nine of the borings were "within the

consideration limits for the proposed building location" and they were evaluated (id. at

Bates 225). Those were 1OA-5442, 8A4C-5443, 1OA-5444, 8A4C-5445, 8A-5446,

3ST-5447, 8A-5448, lOA-5449, and 8A4C-5450 (tr. 11118). PBS&JC alleged that, while

there was groundwater in four of the nine borings, this did not indicate that measures

beyond pumping would be required. Further study to determine the type of material at the

groundwater's depth was needed. Conditions affecting drilling included "quality of

material..., cave-in considerations, dynamic versus static pressure of groundwater.. .,

season of borings, and condition of groundwater (perched or aquifer)" (R4, tab 7C at

Bates 225). The borings were in December 2003 and January 2004, which PBS&JC

alleged to be two of the wettest months and considered the groundwater conditions

encountered then to be a ''worst case scenario" (id.).

24. The claim alleged that, based upon the RFP, "it was concluded that casing

would be required at a ratio of 2 holes per 9 drilled, or 22.2% of the drilled pier

locations" (R4, tab 7C at Bates 225). It alleged that, while PBS&JC had made a 22%

pier casing estimate, starting on 16 August 2010, casings in all piers were required due

9

to groundwater levels and apparent instability of the shaft walls at depth. While the

2 June 2010 Kleinfelder report had discussed potential groundwater and made

recommendations should temporary casing be required, "no extraordinary geological

conditions were noted or implied ... that would have changed [PBS&JC's] assumptions at

bid time" (id. at Bates 226). It developed that PBS&JC had to case 97% of the drill

holes (tr. 1145).

25. The claim included what PBS&JC described as its "notes relative to the

evaluated borings" upon which it relies in support of its alleged pre-proposal 22% casing

estimate (R4, tab 7C at Bates 225). The handwritten notes are undated, unsigned and

anonymous (id. at Bates 256-57). Mr. Williams, who authored and signed the REA,

speculated that they were from its preconstruction department, which put its proposal

together, but he was not involved in the casing estimate, could not recall any

communications with its creator(s), and did not know who had arrived at the estimate or

when (tr. 1/46, 117, 119-22, 201-02). He acknowledged:

Again, that would be a question probably better, I guess,

asked of our preconstruction department. I mean, when I

came on the project, per my previous testimony, was in

February 2010, and the project was already awarded.

(Tr. 11124)

26. The contractors on the project did not give Alliance or Mr. Eddins a project

casing estimate and, prior to the hearing, he never saw the handwritten notations on the

boring logs that PBS&JC contend were made by its preconstruction department in

reaching a casing estimate (tr. 2/62-63, 95, 124).

27. Mr. Rose of Kleinfelder was never asked to provide any casing estimate and

was not involved in any 22% casing estimate by the contractor (tr. 3/75, 79).

28. Although the annotations on the boring logs reflect a 22% casing estimate,

they also note that "our driller assumed" that 30% of the drill holes would have to be

cased, without identifying the driller or when the alleged assumption was made

(R4, tab 7C at Bates 257). There is no evidence t~at any driller had been selected prior

to PBS&JC's proposal. According to the project's drilling superintendent, Terry Herzog,

it is normal and customary for the driller and the concrete subcontractor to bring casings

and pumps to a project in case of groundwater. He was not involved with any pier

casing estimate for the project. His father took care ofHerzog's bid estimates.

Terry Herzog was unaware of any 30% casing estimate. He never saw the boring logs.

He did not know PBS&JC's senior project manager Williams. (Tr. 2/16-18, 22, 24-25)

10

29. Without explanation, PBS&JC did not call anyone to testify who was involved

in reaching the alleged 22% estimate. There is no contemporaneous evidence that the

notes were prepared pre-proposal or of PBS&JC's pre-proposal assumptions concerning

site conditions. Thus, we find that PBS&JC has not substantiated its claim that it

reasonably interpreted and relied upon the GTR and boring logs, and arrived at a 22.2%

casing estimate, prior to its submission of its proposal to the Corps.

30. The claim alleged that an attached Alliance letter supported PBS&JC's

"pre-proposal assumptions" (R4, tab 7C at Bates 226). The claim appears to have

included two Alliance letters on geotechnical and differing site conditions issues

(findings 31, 32), but, ultimately, PBS&JC did not proffer anyone from Alliance as an

expert witness (tr. 2/31-32). As with Kleinfelder's various reports, we have considered

Alliance's letters but do not deem them to be expert opinions.

31. A 21 December 2010 letter to Mr. Williams from Mr. Eddins, prepared by

Alliance's project engineer, pertained to geotechnical conditions during the drilled pier

installation, based upon Alliance's review of the RFP, GTR and boring logs and

interviews with its inspectors. Alliance stated, inter alia, that only 2 of the GTR's

19 borings were within the structure's footprint, of which only 1 documented

groundwater and that, based upon the GTR, about 31 % of the borings indicated water.

However, in most cases, temporary casing was necessary to stem the water flow and/or

prevent further sidewall sloughing and to limit water accumulation to 3" or less. The

stabilization effort began on about 23 August 2010. Mr. Eddins acknowledged at the

hearing that two borings within the building's footprint contained water, not one.

(R4, tab 7C at Bates 395-96; tr. 2/43, 52-53, 103-04)

32. The claim also included a 7 January 2011 letter to PBS&JC from Mr. Eddins,

stating that there had been a differing site condition, based upon Alliance's review of the

RFP, the GTR, the boring logs and the 2 June 2010 Kleinfelder report, and that:

In our professional opinion, it is reasonable to assume that the

anticipated subsurface conditions re~ating to groundwater

issues and casing requirements were substantially different

than those encountered during the installation of drilled piers

for the project.

The conditions described in the above referenced documents

would lead to a reasonable expectation of encountering

groundwater in less than [30%] of the drilled piers and even

fewer indications of potential side-wall instability. Based

upon the conditions encountered during the drilled pier

operations, and as presented in the documentation generated

11

during the full-time observation and reporting of the

operations, casing was required in over [90%] of the piers due

to either excessive groundwater intrµsion, side-wall instability

and/or a combination of both conditions.

(R4, tab 7C at Bates 258)

33. PBS&JC alleged at the hearing and in briefing, but did not articulate in its

claim, that a prior contractor's failures to compact soils after demolition and to remove

debris were differing site conditions (see app. 1115/12 initial post-hearing br. at 10-12,

APFF 65-76; finding 19). However, Mr. Eddins acknowledged that he could not say that

debris and soils that were not as dense as others affected drilling or caused or contributed

to the water encountered. He confirmed that the soils at the lower depths were competent

enough to pour a pier and were as represented in the GTR and that the subgrade materials

were what the boring logs indicated. In his view, the water caused the soil to become

incompetent. (Tr. 2/48-49, 85, 94)

34. Alliance had several Fort Hood projects involving pier installation. In a

November 2010 geotechnical report for one of them, contractors were told to anticipate

groundwater and to assume that about 100% of piers must be cased. In Mr. Eddins' view,

if there is no direction about the number of piers to be cased, a contractor must arrive at a

number but "you never know until you drill the hole" (tr. 2/58-59, 112). The record is

unclear but he apparently believed that a 22%-38% casing estimate would have been

reasonable for the subject project, based upon the GTR. (App. 2nd consol. supp. R4,

tab A-018 at 19; tr. 2/57, 64-65, 74-76, 80, 82; app. dsc resp. at 30, if 79)

3 5. Herzog had prior experience at Fort Hood. For example, it had drilled piers in

2007 or 2008 on another barracks project a few blocks away, on the same street as the

subject project. Water was present, but it came in slowly and could be pumped. There

was little caving. There was a requirement to have casings and pumps on that job, but no

casings were used. (Tr. 2/11-12) Hitting groundwater on a drilling project and the use of

casings was not unusual in Terry Herzog's experience. He had extensive experience with

jobs that required casing and, at the time of the hearing, Herzog had "just started a job

that has to be all cased" (tr. 2/24). However, the amount of groundwater on the subject

project was unusual for him compared to his other jobs (tr. 2/14, 23-24).

36. According to Mr. Williams, a basis of PBS&JC's differing site conditions

claim is that it encountered a "massive amount" of water during installation of deep pier

foundations (tr. 1135) and, for 305 of the drilled piers (see finding 19), there was a "steady

and consistent" or "constant and immediate" flow, such that, as soon as holes were

drilled, it was "clearly evident" that casings were required (tr. 1156, 64-65, see also

tr. 1190, 160-61, 163, 169-70). However, he did not find the conditions encountered to be

12

different than shown in the boring logs. Rather, the logs did not quantify the amount of

water to be encountered, its flow rate into the holes, how many casings or pumps would

be required, how often the contractor would have to case or pump, or the number of holes

that could be pumped versus the number that had to be cased (tr. 1/76-77, 208-09). Under

cross-examination Mr. Williams testified:

Q Okay. And you testified, did you not, that this

was somehow different, a different condition from that which

was shown on the boring logs. Is that accurate?

A Well, I think what I said was the conditions that

we faced and the amount of water that we encountered,

there's no way to determine from the boring logs the quantity

and magnitude of the water. There was water shown in the

logs, yes, but there's no way to quantify how much water.

Q Okay. So the logs don't show the reader or

indicate to the reader how quickly that water inflow occurred.

Right? I mean, isn't that what you just- I thought that's what

you just said, that the logs don't indicate the rate of inflow of

groundwater. Is that accurate?

A Yes.

(Tr. 11170)

37. The CO denied PBS&JC's differing she conditions claim by final decision

dated 25 July 2011 and this timely appeal ensued (R4, tabs 1, 2).

3 8. The contract completion date was 31 October 2011. It was not completed on

time. Final inspection was on about 8 December 2011. The Corps did not assess

liquidated damages. (Tr. 4/143-44)

Corps' Expert Evidence on Differing Site Conditions Claim

39. Kenneth McCleskey, a registered professional geologist, with a Bachelor of

Science degree in geology and a Master of Science degree in civil engineering, prepared

the GTR in substantial part. As of the hearing, he was acting chief of the Corps'

geotechnical engineering and design section at Fort Worth and had been acting chief of

the geotechnical branch. He was offered and admitted without objection as an expert in

the area of geotechnical engineering. He submitted an expert report dated 18 July 2012.

(R4, tab 33; tr. 3/222-24, 228) We consider him to be a mixed fact and expert witness.

13

40. In his expert report Mr. McCleskey stated that, per PBS&JC's REA, in

arriving at its claimed 22% pier casing estimate, it had considered groundwater and

stability conditions in nine borings it deemed to be in the area of the new facility's

construction. He noted that three of them were "lOA" borings that had only been drilled

to a depth of 1O' in areas of proposed new pavement construction for the prior project and

were not intended to be used for foundation design. Piers were to be founded at depths of

32'. Moreover, all other groundwater levels and instability noted in the borings were at

depths exceeding 10'. Static groundwater levels between 11.8' and 28.5' below grade

were measured in five of the six remaining borings. The sixth boring, 8A-5448, was

blocked at 18', indicating unsuitable material, but in the comments on the boring log

included in its claim, PBS&JC mistakenly stated that there was no cave-in. (R4, tab 4 at

Bates 30, Sheet B202, tab 33 at 1-2; see also McCleskey expert testimony at tr. 3/231,

241-42 (lOA borings drilled too short to be reasonably considered for foundation design)

41. In Mr. McCleskey's expert opinion, PBS&JC's analysis of the boring logs in

its claim was not reasonable. It did not consider all of the deep borings, including those

that were not in the building's footprint, but were close. All of the deep borings were

consistent in terms of materials and subsurface conditions observed, including the

presence and transmissibility of groundwater and the instability of subsurface materials

indicated by blockage. (Tr. 3/240-41) He concluded in his expert report that, even

considering only the borings PBS&JC used, its analysis was unreasonable:

Hence all six of the borings considered by the PBS&JC casing

analysis that were drilled to the requisite pier foundation

depth demonstrated either the presence of groundwater,

instability of subsurface materials, or both, which would

reasonably indicate the potential need for casing which should

have been accounted for in the contractor's bid. Therefore,

even considering only the borings PBS&JC used in their

casing requirement analysis, a determination that casing

would be needed in only 22 percent of the piers appears to be

inadequately and unreasonably low.

The PBS&JC pier casing analysis did not include the four

other deep (foundation investigation) borings drilled during

the [Corps] geotechnical subsurface investigation ... borings

8A-5438, 3ST-5440, 3ST-5452, and 8A-5454. These borings

should also have been considered by PBS&JC in the

subsurface information analysis due to their proximity [to] the

14

project site. Out of the ten total deep borings, groundwater

was noted in seven of the borings, while the remaining three

were dry; blockage at various depths was also noted in the

majority of the deep borings, indicating the presence of

unstable materials. It is therefore reasonable to assume that

100 percent of piers would require casing.

(R4, tab 33 at 2; see also tr. 3/236-38, 250, 256-57 (GTR's borings demonstrated

materials' permeable nature and their ability to transmit groundwater because 7of10 of

deep borings were determined to have transmitted water and 10 of 10 indicated either

groundwater or unstable materials as reflected by blockages.))

42. Mr. McCleskey acknowledged that water's flow rate is potentially a factor in

determining whether to case a pier. The GTR showed stable water levels, but the inflow

rate could be variable. (Tr. 3/236)

43. In Mr. McCleskey's expert opinion, job site conditions during drilling were

similar to those indentified in the GTR's site field investigation (tr. 3/263-64). However,

in the nature of fact evidence, he responded to questioning by PBS&JC's counsel that site

conditions "could have been drier, but they could have been much wetter, and as we all

know now, they turned out to be much wetter at that time" (tr. 3/261). The questioning

mixed references to conditions at the time of PBS&JC's proposal compared to when the

borings were taken and changes from the time of the proposal to the time of construction

(tr. 3/259-61). We infer, in logical context, that Mr. McCleskey was referring to

conditions at the time of pier drilling.

44. Mr. McCleskey acknowledged that contractors were entitled to rely upon the

GTR's boring logs. The Corps considered the GTR's information, including the number

of borings drilled and the similarity of the subsurface conditions encountered, to be

completely adequate for contractors' use in submitting their proposals. (Tr. 3/239,

250-51, 260-61, 263-64)

DISCUSSION

As PBS&JC describes it, the "crux" of its differing site condition claim is:

[T] he difference between the type ofgroundwater found in the

borings, static water, and the immediate and continuous

significant inflow of water which was discovered in the holes

immediately upon drilling or shortly thereafter - a condition

nowhere described in the [GTR].

15

The groundwater was a differing site condition not because it

was encountered in 97% of the holes, but because of the

immediacy, rate offlow, and quantity of the groundwater that

was encountered which resulted in 97% of the holes being

cased rather than pumped.

(App. dsc resp. at 30, ~ 79, at 31, ~ 81)

The Corps responds, inter alia, that there was no differing site condition and

PBS&JC's alleged interpretation of the boring logs was unreasonable. The three sets of

contemporaneous daily logs do not support its description of the crux of its claim.

Further, PBS&JC has not met its burden to prove reliance because it did not produce any

verifiable documentation that it evaluated the boring logs or considered the pier casing

issue before it submitted its proposal and did not produce any witness who had first-hand

knowledge of its alleged casing estimate, including who made it and when.

To establish a Type I differing site condition PBS&JC must prove that:

(1) [T]he contract contained positive indications of the

conditions at the site; (2) it reasonably interpreted and relied

upon the indicated site conditions; (3) the conditions

encountered were materially different from those indicated;

(4) the conditions encountered were reasonably unforeseeable

based upon all the information available at the time of

bidding; and (5) its injury was caused solely by the differing

site condition.

Nova Group, Inc., ASBCA No. 55408, 10-2 BCA ~ 34,533 at 170,321. The Federal

Circuit has addressed iterations of these criteria in International Technology Corp. v.

Winter, 523 F.3d 1341, 1348-49 (Fed. Cir. 2008); H.B. Mac, Inc. v. United States, 153

F.3d 1338, 1345 (Fed. Cir. 1998); Stuyvesant Dredging Co. v. United States, 834 F.2d

1576, 1581 (Fed. Cir. 1987); and P.J Maffei Building Wrecking Corp. v. United States,

732 F.2d 913, 916 (Fed. Cir. 1984). Borings are the most significant indication of

subsurface conditions. Nova Group, 10-2 BCA ~ 34,533 at 170,322.

Regarding factor (1), the GTR and boring logs contained positive indications of

site conditions. The GTR warned that "[g]roundwater should be anticipated during pier

construction" and required the drilling contractor to have temporary steel casing and

pumps on-site prior to drilled pier construction (finding 8). It listed 6 of the 19 borings at

static water levels beginning at 11.8' and stated that the rest were dry or blocked.

16

Alliance's Mr. Rose acknowledged that blockage causes include water and loose soils and

that water and blockage indicate a potential casing need. There were six borings within

the building's footprint, of which two, 8A4C-5443 and 8A-5448, were not on the static

water level list. At the logs' elevation groundwater section, 8A4C-5443 was stated to be

dry but the log elsewhere showed water at 13.5' and the hole as blocked at 21.0'. Boring

8A-5448 was indicated to be dry and showed no static water level, but the soil was

described as slightly moist and very moist. (Findings 7, 9, 14)

PBS&JC claimed that the borings were taken in two of the wettest months,

December 2003 and January 2004, and represented a "worst case scenario" for

groundwater conditions (finding 23). However, the RFP did not distinguish those months

and anticipated adverse weather in many other months as well (finding 4).

Concerning the reliance factor (2), the GTR provided, and the Corps

acknowledges, that PBS&JC was entitled to rely upon the boring logs (findings 8, 44).

However, the handwritten notes which PBS&JC cites for its alleged 22% pre-proposal

casing estimate are undated, unsigned and anonymous. PBS&JC's senior project

manager Williams speculated that they were from its preconstruction department, but he

was not on the job until after contract award, was not involved in the casing estimate,

could not recall any communications with its creator(s), and did not know who had

arrived at the estimate or when. (Finding 25) Alliance was not given any casing estimate

and, prior to the hearing, Mr. Eddins had never seen the notations on the boring logs

(finding 26). Mr. Rose of Kleinfelder was not asked for any casing estimate and was not

involved in PBS&JC's alleged estimate (finding 27). Drilling superintendent Herzog was

not involved with any pier casing estimate for the project (finding 28).

PBS&JC did not explain why it did not call anyone to testify who was involved in

reaching its alleged casing estimate, for which we draw some adverse inference. See

Maintenance Engineers, ASBCA No. 52527, 01-2 BCA if 31,472 at 155,387. There is no

contemporaneous evidence that the notes were prepared pre-proposal or of PBS&JC's

pre-proposal assumptions about site conditions. It did not substantiate its claim that it

reasonably interpreted and relied upon the GTR and boring logs, and arrived at a 22%

casing estimate, prior to its submission of its proposal to the Corps. (Finding 29)

Factor (3) requires a comparison of conditions encountered to those indicated in

the contract and a determination of whether they were materially different. First, as we

discussed under factor (1), the contract did indicate subsurface conditions. However, to

prove a Type I differing site condition, PBS&JC must show that the contract contained

some indication of the particular conditions at issue. As we have summarized:

A Type I differing site condition claim is dependent on

what is "indicated" in the contract. Foster Constr. C.A. and

17

Williams Bros. Co. v. United States, 435 F.2d 873, 881 (Ct.

Cl. 1970) ('"On the one hand, a contract silent on subsurface

conditions cannot support a changed conditions claim.... On

the other hand, nothing beyond contract indications need be

proven."). A contractor cannot be eligible for an equitable

adjustment for Type 1 changed conditions unless the contract

indicated what those conditions would supposedly be. P.J.

Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913,

916 (Fed. Cir. 1984); S.T.G. Construction Co. v. United

States, 157 Ct. Cl. 409, 414 (1962).

NDG Constructors, ASBCA No. 57328, 12-2 BCA ii 35,138 at 172,503.

Mr. Eddins of Alliance acknowledged that that the soils at the lower depths were

competent enough to pour a pier and were as represented in the GTR and that the

subgrade materials were what the boring logs indicated. He believed that water caused

the soil to become incompetent. (Finding 33) He also confirmed that the GTR and

borings did not discuss the quantity of water or provide any information concerning the

type of water flow a contractor could expect to en~ounter (finding 10).

Ironically, as suggested in its description of the crux of its claim, which focused

upon the rate of inflow of water, PBS&JC principally complains about the contract's

alleged lack of site condition indications rather than incorrect indications or changes in

the conditions (findings 10, 14, 15, 36). PBS&JC's counsel stressed this point in his

opening statement:

The [GTR] does not describe the water levels. It does

not state how many casings the contractor must be prepared to

use. It doesn't state the quantity or the flow rate [of] water,

and it doesn't discuss anything with respect to expected

infiltration into the site. None of that is in the [GTR].

(Tr. 1/15-16)

Regardless, Mr. McCleskey admitted that conditions were "much wetter" than they

were when the borings were taken. We inferred that "much wetter" meant at the time of

pier drilling. (Finding 43) Nevertheless, this alone does not trigger application of the

differing site conditions clause. PBS&JC itself suggested that the cause of the additional

water could be extreme weather. Drilling began on about 11August2010 and PBS&JC

began to encounter water relatively soon thereafter that pumping did not resolve (findings

18, 20), but Mr. Williams believed that a severe storm on 7-8 September 2010, in

connection with compaction problems he attributed to a prior contractor, created

18

unsuitable material that directly related to the amount of water encountered during

drilling (finding 19) However, "weather occurring during contract performance, no

matter how severe, and other acts of God alone do not fall within the provisions of the

Differing Site Conditions ... clause." Commercial Contractors Equipment, Inc., ASBCA

No. 52930 et al., 03-2 BCA ii 32,381 at 160,255. Moreover, the differing site conditions

clause protects a contractor from undisclosed or unknown site conditions that predate the

contract, not something occurring thereafter. See John McShain, Inc. v. United States,

375 F.2d 829 (Ct. Cl. 1967) (addressing predecessor changed conditions clause);

Commercial Contractors Equipment, 03-2 BCA ii 32,381 at 160,258.

Factor (4) calls for PBS&JC to show that the conditions it encountered were

reasonably unforeseeable based upon all the information available at the time of its

proposal. Drilling superintendent Herzog opined that hitting groundwater on a drilling

project and the use of casings were not unusual, but the amount of groundwater on the

subject project was unusual (finding 35). Mr. Eddins of Alliance, who was not an expert

witness, opined that less than 30% to about 31 % of the project borings indicated that

water was present, fewer indicated sidewall instability, and a 22%-38% casing estimate

would have been reasonable. According to his 21 December 2010 letter in support of

PBS&JC's claim, over 90% of the piers had to be cased due either to excessive

groundwater intrusion, side-wall instability, or both. Mr. Eddins noted at the hearing that,

in a later Fort Hood project, the geotechnical report told contractors to assume that 100%

of the piers would have to be cased. (Findings 10, 30-32, 34)

However, as we have found, there is no contemporaneous evidence of PBS&JC's

pre-proposal assumptions concerning site conditions (finding 29). According to expert

McCleskey, PBS&JC's analysis of the boring logs as presented in its claim was not

reasonable (findings 40, 41 ). Finally, although it did not specify a number of drill holes

to be cased, the GTR for the subject project alerted prospective contractors that

"groundwater should be anticipated during pier construction" and that casing and pumps

were required on-site prior to drilled pier construction (finding 8). As Mr. Eddins

acknowledged, ifthere is no direction concerning the number of piers to be cased, "you

never know until you drill the hole" (finding 34).

Thus, PBS&JC has not met the requirements to establish a compensable differing

site condition set forth in factors (1)-(4). Factor (5) largely pertains to quantum, which

we need not reach.

DECISION

DIFFERING SITE CONDITIONS CLAIM-ASBCA No. 57814

We deny the appeal.

19

BALCONY PIERS CLAIM - ASBCA No. 57964

FINDINGS OF FACT

We incorporate our findings in ASBCA No. 57814 to the extent relevant.

45. SOW § 3 .1.1. prohibited exterior egress balconies (R4, tab 3 at 4 of 796), but

§ 6.2.1 stated: "Use of exterior wrap-around balcony is a deviation (approved by an

existing waiver) from ... [§] 3.1.1." (id. at 42 of796). SOW§§ 3.2.3.6., 6.2.3., 6.5.1. and

6.11.8. also refer to balconies for the barracks (id. at 10, 50-51, 59 of 796). Under SOW

§§ 3.1.3.1. and 3.1.3.1.(a) gross building area was measured to the outside face of exterior

closure walls. It included one half the area of exterior covered areas such as balconies,

breezeways, exterior corridors, and porches, which were measured from the face of the

enclosure wall to the edge of the covered area. (57964 R4, tab 8 at 24)

46. RFP § 00 21 00 stated that "[s]pecial foundation work is required due to

expansive soils found at Fort Hood" (R4, tab 3 at 5 of 106, if 1.1. ).

4 7. Under RFP § 00 73 00, Special Contract Requirements (SCR), the contractor

warranted that its design would meet contract requirements (R4, tab 3 at 20of39, §§ 1.7(a),

1.8). SCR § 1.11, DEVIATING FROM THE ACCEPTED DESIGN (JUN 02), stated:

(a) The Contractor shall obtain the approval of the Designer

of Record [DOR] and the Government's concurrence for any

Contractor proposed revision to the professionally stamped

and sealed and Government reviewed and concurred design

before proceeding with the revision.

( c) Any revision to the design, which deviates from the

contract requirements (i.e., the [RFP] and the accepted

proposal), will require a modification, pursuant to the

Changes clause, in addition to Government concurrence. The

Government reserves the right to disapprove such a revision.

(R4, tab 3 at 22 of 39)

48. RFP § 01 33 16, Design After Award [DAR], § 1.2., stated that the

contractor's DOR is responsible for contract compliance (R4, tab 3 at 97, 100of796).

Section 3.5.3.1. stated:

20

The contractor's licensed geotechnical engineer shall prepare

a final geotechnical evaluation report, to be submitted along

with the first foundation design submittal. This information

should be made available as early as possible during the

over-the-shoulder progress review process. The geotechnical

report shall summarize the subsurface conditions and provide

recommendations for the design of... foundations .... The

[report] shall recommend foundation systems to be used ....

(R4, tab 3 at 108 of 796)

49. GTR § 5, "Discussions," stated:

Development of the final foundation and pavement

designs are [sic] the responsibility of the Design-Build

Contractor and shall be in compliance with the requirements

established herein. However, the Design-Build Contractor

shall provide to the Government engineering studies and

design calculations that support the· foundation and pavement

design recommendations .... The Design-Build Contractor's

foundation and pavement design recommendations shall be

reviewed for technical adequacy and compliance with the

criteria established in the [RFP], including this document.

Specific requirements for the Design-Build Contractor's

foundation and pavement design analysis are provided in

section 5.f [Emphasis added]

(R4, tab 4 at Bates 9) The referenced§ 5.f, "Requirements for the Design-Build

Contractor's Foundation and Pavement Design Analysis," stated:

(1) Recommended Foundation System(s).

A foundation system consisting of reinforced concrete

straight-shaft drilled piers shall be utilized for [the project}.

The Design-Build Contractor shall design the straight-shaft

drilled piers in accordance with the requirements and design

parameters provided in this report. :{Emphasis added]

(R4, tab 4 at Bates 24)

21

50. GTR § 5.b, "Foundation Design Considerations, Recommendations, and

Requirements," stated:

Based on the results of the geotechnical field investigation

and laboratory testing program, and previous engineering

experience at Fort Hood for similar buildings to those of the

[project], the following recommendations, design parameters,

and requirements are provided. For the size and type of the

proposed facility to be constructed at Fort Hood as part of this

project, and the site-specific subsurface conditions present, a

reinforced concrete straight-shaft drilled pier foundation

system is typically considered best-suited foundation system

[sic]. Reinforced concrete straight-shaft piers have proven to

be a highly successful foundation system at Fort Hood. A

shallow foundation system consisting of reinforced concrete

continuous and/or spot spread footings is not considered to be

a viable alternative due to the presence of highly expansive

and compressible clay overburden soils and fill materials and

to the depth ofa competent bearing stratum beneath the

overburden soils. Therefore, shallow footing and foundations

are not allowed. [Emphasis added]

(R4, tab 4 at Bates 11)

51. GTR § 5.d(l) stated:

Pavilions and other Small Support-type Structures. Covered

Pavilions and any other small (<500 GSF) support-type

structures (if applicable) can be supported on reinforced

concrete slabs-on-grade.... It is further recommended that

subgrade preparation ... consist of providing a minimum of 36

inches of compacted nonexpansive fill below the

soil-supported slab. [Emphasis added]

(R4, tab 4 at Bates 15)

52. The barracks are modular unit structures made of wood. The exterior balconies

are described as 2- or 3-floored (balconies on second and third floors, covered walkway

underneath). (Tr. 1142-43, 2/206, 3/126, 4/31, 113; see R4, tab 35 at Bates 7, Sheet S-000;

exs. A-001, A-002) Shaddy Shafie, a lead structural engineer at Atkins, and a licensed

structural engineer in several states and Puerto Rico, was the DOR (tr. 21132-37).

Regarding G TR § 5.d(1) (finding 51 ), he acknowledged that the balconies were overall a

22

continuous system, over 500 gsf. However, for structural design loading criteria, he would

break down the system into the balconies' columns. He thus deemed that the whole balcony

system, regardless of the balconies' large size per floor, could be akin to a covered pavilion

and a small support structure. (Tr. 2/207-08) Project superintendent Hartshorn proposed at

the hearing that each column section involved about 300 square feet (tr. 3/150-51 ).

Alliance's Mr. Rose considered the GTR's provision to be ambiguous as to whether the

under 500 gsf limitation applied to covered pavilions (tr. 3/105). He stated that the balcony

system could be construed to be a covered pavilion:

Q .. .Is it your testimony that three floors of

balconies and covered walkways, consisting of thousands of

square feet of area constitute a covered pavilion?

A Again, I'm not a structural engineer, but I don't

see why it couldn't be construed that way.

(Tr. 3/106)

53. PBS&JC's proposal stated that the site preparation, "along with the foundation

work (drilled piers and grade beams)," was scheduled for completion no later than 259

days after the NTP (R4, tab 15, vol. 2, tab C, "Schedule Narratives" at 2). The parties

agree that PBS&JC's proposal specified its intent to use a drilled pier foundation system

beneath the barracks and did not indicate an intent to provide a design with exterior

balconies (app. bp reply at 7, ~~ 36, 37).

54. The Corps notified PBS&JC that its proposal was deficient due to the lack of

exterior balconies. PBS&JC stated that its interpretation had been based upon SOW,

§ 3.1.1., prohibiting exterior egress balconies (finding 45). It incorporated the balconies

into its design and submitted its best and final offer, prior to contract award on

27 February 2009. (R4, tab 16 at Bates 3-7; app. bp reply at 8, ~ 43; finding 1)

55. The Corps issued a Notice to Proceed for design work on 16 October 2009

(app. hp reply at 9, ~~ 45, 46). PBS&JC submitted an interim foundation design dated

30 November 2009. The parties agree that, under its proposal, the foundation was to be

based upon drilled concrete piers, but its submittal advocated a "screw pile" foundation

system and its drawings depicted the balconies and covered walkways supported on screw

piles. (R4, tab 15B, Schedule Narratives at 2, tab 17 at 3-4; app. bp reply at 9, ~ 48, at 10,

~~ 51-52) Steel pipe screw piles are a proprietary deep foundation system that is less

expensive than drilled piers, which are another type of deep foundation system, poured

with concrete and reinforcing steel (tr. 1/94, 2/138, 3/124, 4/128).

23

56. PBS&JC and the Corps had several exchanges about screw piles, which the

Corps disallowed (e.g., R4, tab 19 at Bates 2, tab 22 at Bates 70, tab 23). A 9 December

2009 Kleinfelder report referred to the barracks as supported on screw piles and contained

drawings depicting balconies and covered walkways supported by them (R4, tab 20 at 2-

4, 46-47, tab 21). PBS&JC's "90% Foundation Submittal" of 27 April 2010 still had the

barracks on screw piles, said to be based on a 26 April 2010 Kleinfelder report (R4, tab

24 at 3, § 2.0 at 41). However, attached specifications covered "DRILLED CONCRETE

PIERS AND SHAFTS" (id. at 5-6, § 02 47 00) and the report stated:

3.2 Deep Foundation Recommendations

Based on the subsurface conditions encountered at the test

boring locations and the project information provided, we

recommend the proposed buildings be supported on straight

shaft drilled piers.... Design information for drilled piers is

provided in the following sections. [Emphasis added]

(R4, tab 24 at 47) The parties agree that Kleinfelder's report did not reference or propose a

shallow foundation system for any of the project work and its design drawings showed

balconies and covered walkways supported by concrete piers (R4, tab 25, Sheet Nos. S-101

through S-115; app. bp reply at 13-14, iii! 68-70).

57. PBS&JC submitted a final foundation design dated 2 June 2010, with

Kleinfelder's revised 2 June 2010 Geotechnical Engineering Study. The parties agree

that it mentioned, for the first time, the possibility of using spread footing foundations

under certain conditions ifthe subgrade were prepared properly. (57964 R4, tab 9 at 61;

app. bp reply at 15, iii! 77-78) PBS&JC did not proffer DOR Shafie as an expert witness.

According to him, the referenced subgrade preparation was required with either spread

footings or drilled piers and he understood that it had been prepared per the GTR

(tr. 2/155, 169, 178). He acknowledged that PBS&JC's previous submittals had shown

the dormitory, including balconies, supported on screw piles or drilled piers, two types of

deep foundation systems (tr. 2/203; see similarly tr. 3/68 (Rose)). There is no evidence

that PBS&JC had raised with the Corps any alleged ambiguities in the above contract

provisions that contained the words "recommended" or "recommendations" as well as

"requirements" or concerning GTR § 5.d(l)'s shallow foundation exception for small

support-type structures (see findings 49-51 ). ·

24

58. Kleinfelder's 2 June 2010 study stated:

3.1 Expansive Soil and [C]onsolidation Considerations

[A] PVR [Potential Vertical Rise] approaching 4 inches is

expected. The estimated vertical movement [of the soil] is

greater than what most structural engineers consider

acceptable for a shallow foundation system.... [Emphasis

added]

3.2 Shallow Foundation Recommendations

We understand that spread footings will be used at select

locations within the proposed structure. This decision

depends on many factors including the magnitude of soil

movement expected, the type of structure, the intended use of

the structure, the construction methods available to stabilize

the soils, and the owner's expectations of the completed

structure's performance. However, one should always expect

a grade supported foundation to undergo some differential

vertical movements.

3.2.1 Building Pad Preparation

Provided herein are subgrade preparation recommendations

for spread footings to modify the magnitude of soil

movements beneath grade supported structures at this site to

approximately one (I) inch ....

3.2.2 Spread Footings

Shallow footings bearing on a properly prepared subgrade

may be used to support the proposed structure ....

(57964 R4, tab 9 at 67-69) However, the report's § 3.3, "Deep Foundation

Recommendations" (id. at 69), repeated the drilled piers recommendation contained in

Kleinfelder's 27 April 2010 report (finding 56). The parties agree that the drawings again

showed balconies and covered walkways supported by concrete piers (R4, tab 29, Sheet

Nos. S-101 through S-115; tr. 1/109-10, 2/135; app. bp reply at 16, ifif 84-85), and that

PBS&JC's finalized July 2010 drawings again depicted concrete drilled piers under the

covered walkways and balconies (R4, tab 35; app. bp reply at 16, if 83).

25

59. PBS&JC's Contract Drawing Sequence No. S-001 states:

THE PROPOSED FOUNDATION DESIGN DEPICTED ON

THE PLANS AND SECTIONS IS BASED ON THE FINAL

UPDATED GEOTECH REPORT BY KLEINFELDER

DATED 0610212010 INDICATING REQUIREMENT OF A

DEEP FOUNDATION SYSTEM. THE DRAWINGS

DEPICT GRAPHICALLY THE PROPOSED LOCATION

OF DRILLED PIER. [Emphasis added]

(R4, tab 35, Soil Preparation and Foundations, Note 1)

60. On 2 July 2010 an ACO issued a Notice to Proceed, received by PBS&JC on

9 July 2010, for construction of the finalized foundation design (ex. G-1).

61. PBS&JC considered the lobby, entrance, mail kiosk, exterior walkways and

balconies to be outside the main building. It sought to use spread footing foundations

under them because it was behind schedule due to water and casing issues with the drilled

piers, wanted to avoid them, and was looking to make up time and save costs, including

potential liquidated damages. {Tr. 1/98-101, 3/195) By 14 October 2010 email to

ACO Hammer, with the stated goal of improving the schedule, Paul Cook, PBS&JC's

Director of Operations, submitted "Design Modification Request - RFI [Request for

Information]-0119," seeking the Corps' "cursory review of our alternate foundation

design intent" to remove drilled piers at the exterior balconies and replace them with

spread footers, ''with the understanding that our designers will provide complete details

and design calculations under separate correspondence for review and approval" (57964

R4, tab 10 at Bates 149). He appended an internal PBS&JC RFI which inquired whether

the change was viable or allowable. A PBS&JC structural engineer responded that it was

viable. He included part of the 2 June 2010 Kleinfelder report (finding 57) and a sketch.

(Id. at Bates 150; tr. 1/102-03) Mr. Cook told the ACO that one reason for the request

was to speed up construction, but the ACO saw no benefit to the Corps in changing the

contract (tr. 4/15, 41; Corps 12/19/12 resp. to APFF in 57964 (Corps bp resp.) at 28,

~ 271 ). There is no evidence that PBS&JC provided "complete details and design

calculations" by separate correspondence or otherwise.

62. The parties agree that the RFP had a separate design value for live loads for

exterior walkways, balconies and stairs of 100 psf and that PBS&JC's structural engineers

calculated that drilled piers under the balconies and walkways columns would carry a live

load of 600 psf (Corps bp resp. at 7, ~~ 205, 206). DOR Shafie contended in a 24 January

2012 memorandum that the foundations in the construction documents for the walkway

columns were a "significant overdesign" (57964, compl., ex. 5). However, he

acknowledged at the hearing that his firm had done the design and that load-bearing

26

capacity was not the only reason to use a drilled pier foundation system (tr. 2/227-28).

Mr. Heinchon conceded that the design could have been "overkill" regarding load bearing

issues, but he noted that the main reason for using drilled concrete piers at Fort Hood was

its expansive soil. Tied in to the main structure, balconies with spread footings would tend

to move a lot more than the rest of the structure. (Tr. 4/111, 115) Mr. Rose also

acknowledged that one consideration for using a drilled pier foundation system is that, if

properly supported, it is less likely to move than a shallow supported foundation (tr. 3/52).

63. By 15 October 2010 email, Mr. Heinchon notified PBS&JC that the Corps'

Geotechnical Section had responded that the GTR disallowed spread footings and

required drilled concrete piers. By 22 October 2010 email to PBS&JC, he reiterated the

disallowance and noted that PBS&JC's technical report had recommended straight shaft

drilled piers. He stated that there was no need for PBS&JC to speak directly to the

Geotechnical Section. (57964 R4, tabs 11, 12)

64. By letter to PBS&JC of 28 October 2010, ACO Hammer reiterated that spread

footings were disallowed and he directed PBS&JC to continue with concrete piers per its

approved foundation design. However, he stated that the Fort Worth District's

geotechnical engineer would be at Fort Hood on 1and2 November 2010 and available to

speak to PBS&JC's geotechnical engineer if it so wished. PBS&JC declined because it

felt a structural issue was involved and it proceeded with the drilled piers, which were

well underway by the time it received the ACO's letter. (R4, tab 30; tr. 1/106-07)

65. PBS&JC contends that it requested, and was denied, the opportunity to confer

with a Corps structural engineer concerning spread footings. DOR Shafie testified:

A We submitted a letter and an RFI, requesting to

use them at these locations, and requested to speak with a

member of the Corps to discuss calculations and methods for

making that system work, using spread foundations at the

balconies and walkways.

Q Were you or anybody working for you on the

structural team ever permitted or given the opportunity to

speak with a Corps structural engineer or a Corps

geotechnical engineer or otherwise provide the details and

design calculations for the use of spread footers under the

walkways and balconies?

A No.

(Tr. 2/141) During cross-examination ACO Hammer testified:

27

Q You said a moment ago that you spoke to your

geotech section. Correct?

A Yes.

Q You never spoke to a structural engineer, did

you?

A I don't believe so. No.

Q And you never took the contractor up on the

contractor's offer to have its structural engineer speak with

your structural engineer. Isn't that right?

A I don't- there was a lot of discussion where

Paul Cook wanted- once he got our reply, what our reply was

going to be or he got our letter, he wanted to meet with our

geotech individuals. Okay. And he may have wanted to meet

with our structural. We were going to entertain that. I think

there were some emails back and forth.

Whether that meeting took place, I don't know ....

Q And you don't recall- and I can show it to you

if you don't-there was an email said, We're not going to let

you talk to our geotech section?

A Well, I -there may have been that letter, and I

don't deny that fact, but that didn't influence my decision.

{Tr. 4/39-41) As noted, the Corps did arrange for PBS&JC's geotechnical engineer to

meet with its geotechnical engineer but PBS&JC declined (finding 64). We have not

found any written request by PBS&JC to speak to a Corps structural engineer or any

corroborating evidence that the Corps denied any such request, whether written or oral.

Thus, we find that PBS&JC has not substantiated its contention that the Corps refused to

allow it to confer with a Corps structural engineer concerning its spread footings request.

Also, we find no evidence that the Corps acted in any way to hinder or delay PBS&JC or

to deprive it of the value of the contract.

28

66. By a 5 November 2010 RFI to the Corps, PBS&JC sought to use a reinforced

concrete slabs-on-grade foundation for the mail kiosk based upon the GTR's provision

that structures less than 500 GSF could be so supported (finding 51). The Corps

responded that this was for stand-alone structures; otherwise the area must use the same

foundation system as the structure to which it was connected. The kiosk did not qualify

because it was structurally connected to the building. (R4, tab 32; see tr. 11112)

Ultimately the Corps allowed spread footing foundations under the kiosk, a single story of

qualifying small size. We are unpersuaded by project superintendent Hartshorn's

calculation at the hearing that the kiosk's gsfwas 625 square feet (tr. 3/156-159).

Regardless, the Corps essentially required PBS&JC to make the kiosk a separate structure

by adding beams that created a building joint which resulted in a discontinuity between

the two structures, and by constructing an expansion joint at the roofs interface to allow

separate movement between the buildings. PBS&JC was behind schedule and the Corps

thought this would help. ACO Hammer allowed the change without any further design

review other than by the project engineer, any contract modification, or any request for

money back from PBS&JC. (Ex. G-2; tr. 11112-13, 4/46, 72, 120, 122, 125)

67. Drilling continued into mid November 2010. A total of 584 pier holes were

drilled. (R4, tab 7B at Bates 222; app. dsc resp. at 17, ii 43)

68. There was no contention that PBS&J's original drilled pier foundation design

for the exterior balconies and walkways, which the Corps had approved, was defective.

Although PBS&JC later contended that it was an over-design, it worked as intended and

the Corps was satisfied with it. (Tr. 2/228-29, 4/118)

69. By letter of 11February2011, Mr. Williams notified the Corps that PBS&JC

would seek an equitable adjustment under the contract's Changes clause (57964 R4, tab 8

at Bates 22). It submitted a certified $368,063 CDA claim dated 2 May 2011 to

ACO Hammer, stating that its original proposal had deep foundations for the building

consistent with the RFP but the Corps changed the building thereafter from internal

corridors to an exterior balcony style building. PBS&JC alleged that, in its redesign, its

engineering team "inadvertently added drilled piers to the exterior walkways" (id. at

Bates 16), but the walkways were not an integral part of the building. They were exterior

covered areas under SOW§ 3.1.3.1.(a) (finding 45), and application of the GTR's small

structures provision (finding 51) was appropriate. PBS&JC noted that its DOR approved

changing from drilled piers to spread footings under balcony columns and alleged that

this was consistent with Kleinfelder's 2 June 2010 report concerning spread footings

(findings 57, 58) and with SCR § 1.11 concerning deviations from accepted designs

(finding 47). PBS&JC contended that its DOR's re-evaluation distinguished building and

exterior balcony foundations, for which spread footings were a viable option. It stated

that this design modification was within its contractual rights but, upon the Corps' refusal

to allow it, it had installed drilled piers at the balcony footings per its original design. It

29

sought its alleged resulting additional costs. ( 57964 R4, tab 8 at Bates 16-17) There is no

evidentiary support for PBS&JC's claim that drilled piers under exterior walkways had

been added to its design "inadvertently."

70. By final decision of 17 November 2011, the CO denied PBS&JC's claim and

this timely appeal ensued (57964 R4, tabs 1, 2).

Corps' Expert Evidence On Balcony Piers Claim

71. Zachary Gerich, a licensed professional engineer, held a bachelor's of science

degree in civil engineering and a master's degree in structural engineering. At the time of

the hearing he was a senior structural engineer in the Fort Worth District's structural

design s.ection. He was offered and admitted without objection as an expert in structural

engineering. He submitted an expert report dated 18 July 2012. (R4, tab 34; tr. 4/48-51)

72. In Mr. Gerich's opinion, GTR § 5.d.(1) (finding 51) applied to structures

under 500 gsfthat were not part of a major structure-"more of a picnic-type structure,

canopies, just anything that's not a major structure" (tr. 4/56). He described the balconies

at issue as a three-story construction of steel framing with many methods of attachment to

the building. He demonstrated that contract drawings showed that balconies and covered

walkways were structurally integrated into the barracks through interconnected columns,

beams, support angles, headed studs, and concrete decks. (Tr. 4/58-69)

73. Based upon Mr. Gerich's expert testimony, the contract drawings, and

DOR Shafie's acknowledgement that that the balconies were a continuous system over

500 gsf, we find that the balconies and covered walkways were not under 500 gsf and did

not qualify for the GTR § 5.d(l) exception to the contract requirement for a drilled

concrete pier deep foundation system (findings 51, 52, 72, 76). We find the DOR's and

Mr. Rose's propositions at the hearing that the balcony system could be akin to a covered

pavilion and small support structure (finding 52) to be unreasonable and the Corps'

interpretation to be the only reasonable one.

74. Mr. Gerich opined that use of drilled pier shafts is to minimize movement

within poor soils, such as the heave and shrinkage of the clays in the local Texas area.

Piers are the main type of foundation that will eliminate any excessive movement in a

structure. (Tr. 4/70) Corps expert McCleskey stated that the reinforced concrete straight

shaft drilled pier foundation system was a project requirement due to the facility's design

requirements, the subsurface conditions, and his and the Fort Worth District's previous

design and construction experience for similar structures. The advantages of a drilled

pier foundation system are that it extends below the soil's upper active zone that would

tend to produce heave, expansion, consolidation, or settlement with a shallow foundation

30

system, and it can be extended to a deeper, higher bearing strength formation better able

to support the anticipated design loads for the facility. (Tr. 3/243-44)

75. Mr. Gerich similarly stated in his report that the GTR did not allow shallow

foundations based upon the site's highly expansive and compressible clay soils. Potential

heave in the upper 12' zone could be 2". Drilled shaft piers reduce potential swell and

settlement to acceptable levels. Spread footings, however, will still move with the upper

active soil zone. Movement can be reduced to tolerable levels only by extensive soil

excavation and replacement with non-expansive fill. He also noted that Kleinfelder had

recognized that there had to be extensive subgrade preparation, to minimize soil

movement to about l ", if spread footings were used. However, in Mr. Gerich' s expert

opinion, given that the balconies had a 5'-4" span, even I" of soil movement could affect

their slope and function and would cause more structural issues, deterioration of the wood

structures, and maintenance problems, in the future. (R4, tab 34 at 1-2)

76. Citing contract drawings, Mr. Gerich reported that the balconies/covered

walkways were effectively integrated into the dormitory structure and that, given the

anticipated soil heave and that the balcony/walkway system was not designed to move

independently of the main structure, a common foundation system was required. In his

opinion a structural designer should not mix different structural systems within a

structure; use of different foundation types requires isolation joints at the intersection of

the different systems; and the attachment of the balcony to the building structure would

undergo severe deformations. The worst scenario would be differential settlement of the

individual footings, which would damage the balcony and building connection and the

connection between the exterior balcony columns. Mr. Gerich described in detail the

potential problems with using spread footings instead of drilled piers for the

balcony/walkways, including, inter alia, that the entire balcony structure would need to be

isolated from the building, with enough clearance to prevent interference due to

settlement and additional footings to support the balconies properly. (R4, tab 34 at 2-4)

Mr. Gerich acknowledged at the hearing that it was possible, "[w ]ith a complete

redesign," to design a separate structure for the balconies that would have allowed

differential movement between them and the building (tr. 4/82).

DISCUSSION

PBS&JC contends that the Corps improperly denied its request to use shallow

footings under the balconies and exterior walkways, which the contract allowed and was

not a design deviation, as demonstrated by the Corps' acceptance of a shallow foundation

at the mail kiosk. Alternatively, the contract was ambiguous as to whether the spread

footers could be used and it should be construed against the Corps. PBS&JC apparently

alleges latent ambiguities. Further, the Corps acted arbitrarily and capriciously and

breached its duty of good faith and fair dealing when it failed to cooperate with PBS&JC

31

in its request to use spread footings and to administer the contract in a manner that did not

hinder or delay performance or increase its cost.

The Corps responds that the contract was not ambiguous; it expressly required

deep foundation systems and disallowed shallow footings for the balconies and exterior

walkways; and the Corps was entitled to strict compliance. The Corps contends that

PBS&JC's claimed interpretations were not reasonable and it did not rely upon them prior

to contract award. Lastly, the Corps asserts that it administered the contract reasonably

and did not breach its duty of good faith and fair dealing.

Regarding contract requirements for foundations, the GTR stated that the

contractor's foundation and pavement designs were to comply with the RFP's and GTR's

requirements and that specific requirements were in GTR § 5.f. That section,

"Requirements for the Design-Build Contractor's Foundation and Pavement Design

Analysis," stated under~ (I), "Recommended Foundation System(s)," that a reinforced

concrete straight-shaft drilled pier foundation system "shall be utilized" and the

contractor "shall design the straight-shaft drilled piers" in accordance with the GTR

(finding 49). GTR § 5.b, "Foundation Design Considerations, Recommendations, and

Requirements," stated that a "shallow foundation system" of "reinforced concrete

continuous and/or spot spread footings" was "not considered to be a viable alternative"

and "shallow footings" were "not allowed" (finding 50).

The GTR § 5.d(I) exception at issue applied only to covered pavilions and "any

other small (::;500 GSF) support-type structures" (finding 51). It thus equated covered

pavilions with "other" small support-type structures, all of which had to be equal or less

than 500 gsf. We have found that the balconies and covered walkways were not under

500 gsf, did not qualify for the small structure exception, and that the DOR's and

Mr. Rose's propositions at the hearing that the balcony system could be akin to a covered

pavilion and small support structure were unreasonable (finding 73).

PBS&JC's actions confirm that it interpreted the RFP to require a deep foundation

system when it submitted its accepted proposal and for a long time after contract award.

After some initial confusion on its part as to whether exterior balconies were required,

PBS&JC incorporated exterior balconies into its design prior to contract award (findings

53, 54). The accepted proposal design showed a foundation based upon drilled concrete

piers-a deep foundation system (finding 55). PBS&JC alleged in its claim that, in its

re-design, its engineers had "inadvertently added drilled piers to the exterior walkways,"

but there is no evidentiary support for the claim of inadvertence (finding 69). PBS&JC's

interim design submittal of 30 November 2009 and designer Kleinfelder's 9 December

2009 report, both post-contract award, each depicted balconies and covered walkways

supported on screw piles, another deep foundation system. Kleinfelder's 26 April 2010

report recommended a straight shaft drilled pier foundation system, did not propose a

32

shallow foundation system for any of the project work, and its design drawings showed

balconies and covered walkways supported by concrete piers. (Findings 55-57)

Kleinfelder' s 2 June 2010 geotechnical engineering study mentioned the

possibility of spread footing foundations for the first time, stating it understood they

would be used at select locations, and that they could be used on a proper subgrade.

However, the report also stated that the soil's estimated vertical movement was "greater

than what most structural engineers consider acceptable for a shallow foundation system,"

repeated the drilled piers recommendation in the 26 April 2010 report, and contained

drawings showing balconies and covered walkways on concrete piers. (Finding 58)

PBS&JC's finalized July 2010 drawings again depicted concrete drilled piers under the

covered walkways and balconies (findings 58, 59). It was not until 14 October 2010 that

PBS&JC submitted a "Design Modification Request" to remove drilled piers at the

exterior balconies and replace them with spread footers (finding 61 ).

In sum, it is apparent that the contract did not allow the use of shallow spread

footings under the exterior balconies and walkways, and that is how PBS&JC interpreted

it for much of the contract performance period.

Regarding PBS&JC's alternative ambiguity argument, a contract provision is

ambiguous only if it is susceptible of more than one different, reasonable, interpretation.

Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999); Edward R.

Marden Corp. v. United States, 803 F.2d 701, 705 (Fed. Cir. 1986). While we have found

the Corps' interpretation of the exception allowing shallow foundations for small

structures to be the only reasonable one (finding 73), even if we were to assume that there

is another reasonable interpretation, PBS&JC cannot recover because any ambiguity

would be patent and it failed timely to inquire about it. A patent ambiguity is one that

would be apparent to a reasonable person in the claimant's position. In such a case, the

contractor has a duty to inquire of the government about the provision's meaning before it

submits its bid or proposal. The issue of whether a contractor's particular interpretation is

reasonable is reached only if the ambiguity is not patent. Lockheed Martin IR Imaging

Systems, Inc. v. West, 108 F.3d 319, 322 (Fed. Cir. 1997); Newsom v. United States, 676

F.2d 647, 649 (Ct. Cl. 1982); Dick Pacific/GHEMM, JV, ASBCA Nos. 54743, 55255,

09-2 BCA if 34,178 at 168,965.

PBS&JC knew, prior to its final proposal submission, and before contract award,

that the contract included exterior balconies (finding 54). PBS&JC's alleged

interpretations and ambiguities advanced at hearing or in briefing are strained. It alleges

that there are ambiguities to the extent that any of the relevant contract provisions

contained the words "recommended" or "recommendations" as well as "requirements"

(see findings 49, 50), or that the 500 psf reference in the shallow foundation exception

could be read not to apply to covered pavilions, or not to apply when individual column

33

sections were under 500 gsf (see findings 51, 52 ). However, any such alleged

ambiguities were obvious. PBS&JC should have timely raised them and it did not

(finding 57). Therefore, the alleged ambiguities are resolved against it. P.R. Burke Corp.

v. United States, 277 F.3d 1346, 1355 (Fed. Cir. 2002). Because the ambiguities alleged

by PBS&JC were patent, we do not reach any latent ambiguity arguments.

With respect to PBS&JC's contention that the Corps acted arbitrarily and

capriciously in denying its request to use spread footings under the exterior balconies and

covered walkways, the Corps' actions were sanctioned under the contract. It required that

the contractor obtain the government's concurrence for any proposed revision to the

approved design before proceeding, and the government reserved the right to disapprove

any design revision that deviated from contract requirements. (Finding 47)

PBS&JC alleges that the spread footings change was not a deviation from contract

requirements and notes that the Corps allowed spread footing foundations under the mail

kiosk, without any contract modification. However, the mail kiosk was a single story of

qualifying small size, which PBS&JC in essence made a separate structure. (Finding 66)

Although Mr. Gerich acknowledged that it was possible to design a separate structure for

the balconies that would have allowed differential movement between them and the

building, this would have required a complete redesign (finding 76). Moreover, while the

requirement for drilled piers under the balconies "'nd walkways could have been more

than was necessary for load-bearing purposes, the main reason for using drilled concrete

piers at Fort Hood was its expansive soils. Balconies with spread footings would tend to

move a lot more than the rest of the structure to which they were tied. Mr. Rose of

Kleinfelder acknowledged that a drilled pier foundation system is less likely to move than

a shallow supported foundation. Expert Mr. Gerich confirmed that drilled piers were

used to minimize movement within poor soils, such as those in the local Texas area, and

that spread footings would move. (Findings 62, 74, 75)

The Corps was entitled to compliance with its specifications and the approved

design, and saw no benefit to it in changing. It was not obligated to approve a change,

particularly such a significant one, advanced by PBS&JC for the first time relatively late

in the project. (Findings 57, 61, 68) Thus, the Corps did not act arbitrarily and

capriciously in denying PBS&JC's request to use spread footings under the balconies and

covered walkways.

Somewhat intertwined with its contentions that the Corps acted arbitrarily and

capriciously, PBS&JC further alleges that the Corps breached its duty of good faith and

fair dealing and its duty not to hinder or delay contract performance by failing to

cooperate with it in its request to use spread footings. PBS&JC particularly stresses the

Corps' alleged refusal to allow it to confer with a Corps structural engineer.

34

The duties to cooperate and not to hinder have been treated as aspects of the duty

of good faith and fair dealing. Metcalf Construction Co. v. United States, 742 F.3d 984,

991 (Fed. Cir. 2014). Government officials are presumed to act in good faith and it takes

clear and convincing evidence to prove otherwise. Road and Highway Builders, LLC v.

United States, 702 F.3d 1365, 1368-69 (Fed. Cir. 2012). In Metcalf, the court of appeals

discussed governmental breach of the duty of good faith and fair dealing in terms of acts

or omissions that, while not expressly proscribed by the contract, are inconsistent with its

purpose and deprive the other party of the contract's contemplated value. 742 F.3d at

991; accord Century Exploration New Orleans, LLC v. United States, 745 F.3d 1168,

1179 (Fed. Cir. 2014). The court recently summarized:

Every contract implicitly contains a covenant of good

faith and fair dealing, keyed to the obligations and

opportunities established in the contract. The covenant

imposes on each party a "duty not to interfere with the other

party's performance and not to act so as to destroy the

reasonable expectations of the other party regarding the fruits

of the contract."

Lakeshore Engineering Services, Inc. v. United States, 748 F.3d 1341, 1349 (Fed. Cir.

2014) (citations omitted).

PBS&JC stated in its 14 October 2010 request to change its approved design in

order to use shallow spread footings under the exterior walkways and balconies, rather

than deep foundation concrete drilled piers, that it would provide complete details and

design calculations. There is no evidence that it did so. (Finding 61) The Corps notified

PBS&JC that its Geotechnical Section had disallowed the change. While, at first, it stated

that there was no need for PBS&JC to speak directly to the Section, the Corps later

arranged for a meeting if PBS&JC so wished. PBS&JC declined because it felt a

structural issue was involved and it was well underway with the drilled piers at the time.

(Findings 63, 64) We found that PBS&JC did not substantiate its contention that the

Corps refused to allow it to confer with a structural engineer concerning its spread

footings request and we found no evidence that the Corps acted in any way to hinder or

delay PBS&JC or to deprive it of the value of the contract (finding 65).

In sum, there is no evidence that the Corps' actions were in any respect tantamount

to a breach of its duty of good faith and fair dealing.

35

DECISION

BALCONY PIERS CLAIM - ASBCA No. 57964

We deny the appeal.

CONCLUSION

ASBCA Nos. 57814 and 57964 are denied.

Dated: 25 July 2014

dministrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

~~44

Administrative Judge

OWEN C. WILSON

Administrative Judge

---------

Acting Chairman Acting Vice Chairman

Armed Services Board Armed Services Board

of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the Armed

Services Board of Contract Appeals in ASBCA Nos. 57814, 57964, Appeals of PBS&J

Constructors, Inc., rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN

Recorder, Armed Services

Board of Contract Appeals

36