# Hardwick Bros. v. United States

> United States Court of Federal Claims · July 31, 1996 · 41 Cont. Cas. Fed. 76,972

URL: https://www.frixlaw.com/law-library/cases/6646065

## Case

- **Full name:** HARDWICK BROTHERS COMPANY, II v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** July 31, 1996
- **Citations:** 41 Cont. Cas. Fed. 76,972; 36 Fed. Cl. 347; 1996 U.S. Claims LEXIS 138; 1996 WL 436428
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Robinson
- **Judges:** Robinson
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6646065

## How later opinions describe it (automated extraction)

- stating that "courts will not draw [a] negative inference if the evidence was unintentionally or even negligently destroyed or the destruction can be satisfactorily explained”
- discussing ways to recover under differing site conditions provision and rejecting differing site conditions claims of contractor for construction of levee on river flood plain

## Opinion text

OPINION
ROBINSON, Judge:
This case is before the court on remand from the U.S. Court of Appeals for the Federal Circuit. 72 F.3d 883, 886 (1995). This court had previously dismissed the case after trial for lack of jurisdiction. 26 Cl.Ct. 884 (1992). The Federal Circuit reversed that ruling, and the case is now ready for disposition.
The litigation arises out of a contract between the United States Army Corps Engineers (“the Corps”) and Hardwick Brothers Company II (“Hardwick” or “plaintiff”) for the construction of a system of levees described as Phase I of L-246, part of a three-phased comprehensive flood control project north of the Missouri River near Brunswick, Missouri (“the Project” or “the Palmer Creek job”) in the late 1970’s. 1 The Corps designed *354 the Project, in part, to contain Palmer Creek, which flows southward into Cut-Off Lake, an oxbow lake, before flowing south into the Missouri River. The levee system was intended to protect agricultural lands in the Brunswick-Dalton Drainage District (“the District”) from flooding. 2
As amended, the complaint seeks $3,797,-276.50 in equitable adjustments and other damages. Plaintiff bases its various monetary demands upon separately stated, but sometimes overlapping, claims for relief. These claims, in brief, allege that plaintiffs losses were due to defendant’s defective or deficient engineering in designing the Project, defective plans and specifications, differing site conditions, a breach of the implied covenant of good faith and fair dealing, spoliation of evidence, nondisclosure of superior knowledge, and over-inspection of plaintiffs work, all of which resulted in job inefficiencies and extra operating costs.
After a careful review of the transcript, exhibits, briefs and the respective oral arguments of the parties, the court finds that defendant is liable to plaintiff only with respect to one of plaintiffs claims based on over-inspection. All of plaintiffs remaining claims are denied. The court’s reasoning follows.
Factual Background
In 1976, when Hardwick won the contract here in dispute, plaintiff was a successful, experienced levee contractor with good credit and financial resources. During Hardwick’s prior fifty years in business (including all predecessor entities), the company had performed many similar excavation and levee projects. One predecessor entity, the S.W. Hardwick Company, had begun business in the 1920’s. Throughout their respective existences, all of these entities maintained their principal offices in Beardstown, Illinois.
The Corps designed the Project in keeping with it past practices. The design was based on various types of hydrologic data, including Missouri River flood frequencies, the amounts of water which would likely require containment, precipitation and runoff from the hills to the north of the Project site and from farms adjacent to the Project, releases from upstream lakes which serve flood control functions for the Missouri River, river hydrographs, rating curves, soil borings, other hydrologic data and other standard design factors. These design factors, in the aggregate, determined such features as the location of the levee’s centerline, height, width, slope ratio, the construction methods allowed, location and size of drainage structures, quantities of materials, haul roads and the location and size of borrow areas.
During the design phase the Corps determined that the Palmer Creek levee should be at a height lower than the Missouri River’s north bank levee because such a design feature would allow a savings in dirt quantities and, thus, result in lower construction costs. The design accounted for lowering the Missouri River levee (part of the subsequent phases of L-246) to a 25-year flood containment height from a 100-year flood height. Also, during the design phase the Corps’s Missouri River Division considered, but rejected for unknown reasons, an alternative design involving a ditch from Cut-Off Lake to the river with a bottom elevation of approximately 611.5 feet above mean sea level (MSL). However, the final design and location of the levee was a compromise which gave consideration to the interests of the *355 landowners and to other factors, including the availability of suitable fill materials and their location, foreseeable potential construction difficulties, economic factors such as the overall cost of the levee to the government, the amount of potential or existing fertile farmland that would be taken by the levee (if placed further to the west), possible interior drainage problems and the number of ditches that would be required with some other location.
The Corps’s design carried the levee’s cen-terline for a substantial distance alongside the western boundary of Cut-Off Lake. The lake was formed in the late 1880’s as an oxbow lake when a section of the Missouri River shifted its channel. Generally, oxbow lakes such as Cut-Off Lake fill up over time with alluvium from the hillsides above them. These alluvium deposits tend to be clay soils while deposits from rivers during floods tend to be sand and silts which generally are not as cohesive in nature. Groundwater in a river valley usually migrates both with the river and toward the river, intercepting the river about the river’s water level. In floodplains, materials are deposited and redeposited and in the process become “reformed” materials. They are not, however, homogeneous. Consequently, their deposition does not result in predictable layers of coarse and fine materials in the same areas.
The soils at the Project site have been reformed and some of the clays have been washed out of them making them more pervious and able to more freely transmit water from nearby or adjacent sources. Thus, the river at the Project site is, in essence, a “penetrating” river. However, the Project site was not unique in this respect because all river floodplains have the same general deposition history and generally exhibit this same characteristic of relatively quick adjacent soil penetration.
Over the years of its study of this proposed project, the Corps had accumulated a significant amount of data to assist it in designing the levee including the following:
(1) Old Missouri River maps dating from 1885. Such maps were usually maintained in the Hydrologic Engineering Branch for purposes of studying the impact of navigational projects on the environment. These maps, showing the location of the old Missouri River channel, revealed that the levee’s alignment, as ultimately located and designed, would pass directly over the old channel in some places. The Corps had survey data of the course of the river dating from 1879. These data showed that the lake was formed when the Missouri River cut through a large meander near Bushwhacker Bend. The Corps also had aerial photographs showing that, as late as 1945, there were low areas at the site corresponding to the old channel which had not yet been filled in by deposition and which still held water.
(2) Piezometric study data. Corps data showed the presence of a water-saturated piezometric mound under the lake. This type of mound is one which naturally occurs under lakes and drops off as the distance from the lake increases. It derives its name from the use of a particular instrument called a piezometer, a device hydrologists and geo-technical engineers use to measure the change of pressure of a material subjected to hydrostatic pressure. Thus, the device can provide useful hydrologic data for designing levees and similar projects. The Corps’s pie-zometric study data showed that the piezo-metric level under the lake is fed by the river and by Palmer Creek’s flow into the lake. From this data the Corps knew that the mound would be almost flat in dry periods and higher in wet periods and that groundwater at the site would likely respond relatively quickly to changes in the water level of the lake, the river or Palmer Creek. However, there is nothing hydrologically unusual or unexpected about the presence of a piezome-tric mound under a lake. The effect of such a mound upon surrounding water tables will vary with the particular factors. The court notes that the Plans contained no representation concerning the existence of, or fluctuations in, the piezometric mound under CutOff lake.
(3) Comprehensive precipitation and river volume data. The Corps had developed rainfall data in the lake area as well as upriver. The Corps also had data relating to its own river releases from its up-river lakes, including Gavins Point at Yankston, S.D., and *356 certain Kansas basin lakes whose levels were controlled by the river. These data suggest that if upper Palmer Creek exceeded its banks due to extremely heavy precipitation, such precipitation, independent of the river, could potentially flood the site. The Corps also had developed hydrographs showing river flows for a number of years pertinent to the job site.
(4) Manuscript maps. The Corps had surveyed some areas surrounding the site in 1964 and 1965 to establish vertical and horb zontal controls for the purpose of photogram-metric mapping. It later established various benchmark points, or “ties,” in connection with its instrument surveys of portions of the centerline of the levee. Thereafter, using photogrammetry techniques and state-of-the-art plotting equipment (all in accordance with its standard practice in designing a levee project), the Corps prepared manuscript maps from aerial photographs. The contours shown on the maps were complete. Spot elevations established by surveys were also shown. The manuscript maps included buildings, rivers, bridges and other features revealed in the photos. No legend appears on these maps with respect to any particular standard of accuracy to be applied to the contours. Wind action, glare in the photos and trees along the lake’s shoreline can contribute to contour inaccuracies. The Corps’s plotter placed a question mark in one spot on the map, showed contours crossing over the centerline and used the lake surface as an elevation control point. 3
(5) Soil borings logs. Most, if not all, of the Corps’s approximately 68 soil borings were taken 10 years before the Project was to begin. The borings in the proposed levee’s alignment (the foundation) were spaced 200 to 1000 feet apart. They were typical of the Corps’s borings for comparable levee jobs and they were of the usual diameter and depth. The boring logs showed the types of soils encountered and the thickness of the layers of soils at identified locations. The boring logs showed that the top soil layers at key locations consisted primarily of fat clays with high liquid limits. Such clays are known to have poor construction characteristics because, when subjected to sufficient moisture, they become sticky and present difficulties in supporting construction equipment such as scrapers, draglines and dozers. Also, the boring logs showed, in various areas, nonuniform deposits of silts in varying thicknesses, occasional deposits of thin layers of clay over the silts and layers of sand. Thus, the boring logs contained various indications of the difficult, but not unusual, nature of the soil strata at the site and the potential for equipment problems during construction.
Additionally, the boring logs showed water levels measured 15 minutes after the extraction of each sample. No water level measurements were indicated later than 15 minutes after extraction. When soil borings are taken with mobile rigs and power augers of sufficient size to permit extraction of adequate dirt samples for analysis, if they do not penetrate into sand lenses or strata below the upper level clays, a boring will stand essentially dry for 10 to 15 minutes. Therefore, depending upon the size of the borings and the various soils penetrated by the bor-ings, more time may be required to obtain an accurate reading of water tables. However, if the penetration is into a sand lense, little time is required for groundwater to rise to the maximum level it can reach in the bore hole. In such eases, taking borings after 15 minutes is adequate to obtain an accurate reading of water tables, even if the borings penetrate clay and silt layers before reaching the sand lenses.
*357 In this case, some of the boring logs depicted high water levels in sods west of CutOff Lake. About 19 of 32 borings, taken at different locations and times, showed groundwater within five feet of the surface. Some of the Corps’s borings indicated groundwater at or near 620 MSL. However, the Corps may have taken these particular borings immediately after flooding and, therefore, they would not have been representative of normal conditions. Conversely, they could have been taken during dry periods when water tables were abnormally low. Apparently, borings reflecting water tables at five feet or more generally would indicate an adequate foundation for moving equipment.
(6) Additional hydrologic and hydraulic data. Such data included rating curves, river flows over a period of many years down to 1977, Construction Reference Plane (CRP) data and river slope information correlated to the Glasgow gauge at Glasgow, Missouri. Hydrology is the study of water from the time it falls until it appears in rivers, lakes or oceans. Hydraulics is the study of the flow and control of water through structures. Thus, rating curves are a graphic form of hydraulic data. A rating curve depicts the elevation of a water surface compared with the discharge in some term of measurement, such as cubic feet per second, as it passes a given point at a particular elevation. The Corps’s rating curves developed for this project graphically showed Palmer Creek discharges at various Missouri River flood heights after completion of the levee. The Corps, as a matter of practice, has never placed rating curve data in levee plans. Such data is only placed in plan documents for dam projects where lives below the dam are at stake and tighter controls are needed over water flows over the dam. The Palmer Creek levee was designed with two concrete structures with flap gates which provide adequate protection when lives and property are not at risk.
Further, the Corps’s records showed that at a flow of 2000 cubic feet per second in the Missouri River, which occurs once in every five years (usually in the period April to July), the Corps had a very limited ability to estimate crop damage at the site due to inundation. The Corps’s records also showed that, perhaps because of the weir at the mouth of the lake, the lake would fluctuate in a narrow range. Thus, it recognized that the weir would prevent the lake from falling below its crest except for short periods and, accordingly, that the soils adjacent or close to the lake would not dry out as quickly as would more distant soils.
The CRP is a method or device developed by the Corps for designing navigation projects. The plane is an imaginary one established to provide a reference for designing and constructing rock jetties, revetments and water diversion and control dikes within the river which help to use the force of the river to scour it and keep its channels free for navigation purposes. The CRP is based upon an established elevation and is related, pertinently, to the Glasgow gauge. The CRP document is kept in the Hydrologic Engineering Branch in the River Development Section. It provides vertical elevations from which distances and elevations of the tops of jetties may be calculated and fixed by the contractor. The Corps has only provided CRP data to contractors bidding upon “navigation type” contracts. However, since a levee job is distinct from a navigation contract, there is a lesser relationship between the CRP and the elevations depicted on levee plans.
Collectively, the Corps’s data suggests that at about six or seven feet below its banks, the Missouri River could begin to back-flow into Palmer Creek. As the river level increased it could back-flow far enough to reach Cut-Off Lake and raise its level. Corps studies showed that during the years 1970-1973 there were approximately 711 days in which no Palmer Creek discharge would have been possible. This fact was not disclosed in the Plans.
Using the CRP, the slope of the river, its flow .charts and other related hydrologic data, the Corps had developed an inexact computerized model for assessing back-water effects, particularly with respect to bridges and static obstructions within streams, known as HEC II studies. Thus, the Corps possessed a methodology for making a correlation of the slope of the Missouri River to *358 the Glasgow gauge from the proposed Palmer Creek discharge point at Missouri River mile 242, which the Corps had determined had an average slope of 0.83 feet per mile to the Glasgow gauge, and for making a rough estimate of the back-water effect in Palmer Creek.
(7) Lake storage capacity, drainage and ponding data. The Corps’s files contained considerable data relating to precipitation levels, the water storage capacity of the lake, the need for two large concrete structures at strategic locations, and potential drainage and ponding problems at the site. 4 The Corps’s design called for two rather unusual control structures — unusual because they were designed to serve different purposes. The 400 structure was designed to store water when Palmer Creek was full. Thus, that structure’s gate was designed to remain open to allow continuous discharge without any day-to-day control features. However, the Main Stem structure, which was considerably larger, was designed with automatic flap gates to prevent the river, when at higher than normal levels, from inundating adjacent or nearby farmlands. The District, which had responsibility for planning and providing interior drainage (ie., the provision of ditches to the levee structures in the natural flow ways) did not have a formal drainage plan for Palmer Creek. Drainage, historically, had always been located simply where it was “likely to go.” However, suitable ponding areas were recognized as needed landside of the proposed levee to accommodate run-off until the run-off could pass through special corrugated metal pipe (CMP) structures in the proposed levee. The Corps designed the Project’s drainage structures because the District had no ability to do so. The design of drainage features for specific locations is not irrevocably fixed and, therefore, such designs are subject to change as the work progresses. In fact, the Corps expects that some of its designed drainage structures will have to be relocated, even after commencement of work. This is normally treated as a minor undertaking involving only a “field adjustment” during construction.
(8) The General Design Memorandum (GDM). The Palmer Creek GDM was prepared about July 21,1971. This document is one of the Coips’s standard documents which it routinely develops for river levees and similar projects. The GDM usually contains technical information which the Corps regards as not necessary for contractors to have for purposes of accurate bidding of the job, but necessary for the proper design of the levee. Thus, as a matter of practice, the Corps does not include the GDM among the contract documents. However, the GDM is needed in determining the best possible location of the levee, fixing its slope, selecting borrow sources, determining quantities, setting the height of the levee, estimating potential drainage problems, providing for adequate drainage structures and estimating the protected acreage of farmland.
The Palmer Creek GDM described an earthen levee approximately nine to 10 feet high with berms located in areas where the clay blanket in the foundation of the proposed levee was thin. The GDM further provided special detail for those areas where the levee was designed to cross two arms of Cut-Off Lake and low swampy ground and stated that Cut-Off Lake’s existing normal water level “varies between 618 and 620 feet above mean sea level.” Although the Corps, using later-developed data, subsequently made many changes from those shown in the Palmer Creek GDM in drafting the Plans (which came about from the review comments of various divisions and branches with *359 in the Corps), the GDM, in general, contained much of the basic information needed for the design of the levee. 5
(9) Advance or First Draft of the Plans. This document consisted of an initial set of contract drawings using the data taken from the GDM. Normally, the Corps circulates this set of preliminary plans to the various concerned Corps divisions and sections, including the Engineering Division, the Soil Section and the Hydrology Section, for comments and proposed changes. The Palmer Creek advance plans resulted in a design change — raising the height of the levee— based upon rating curve data developed by the Hydrology and Hydraulic divisions within the Corps in 1972 and in 1974 for Palmer Creek at its discharge point into the Missouri River at mile 241.8. Other proposed changes involved the addition of ziptoning to show water in the lake area, establishment of different alignment points and curvature information (the final Plan alignment was changed from the GDM to tie into the existing levee), location of the 26 drainage structures, the ARCO pipeline crossing, the borrow areas, the existing levees, additional water surfaces, soil classification data, a larger scale including a blowup of the 400 structure, typical area fills and boring data, which in this case included the Atterberg limits (up to five feet in depth but not below that level), the soil designations and the water levels in the bor-ings (the borings used the topographic contour levels for the tops of the borings since many were not taken in the centerline or close to the survey points). The Corps also eliminated duplicative data relating to the borings. However, it eliminated some of the contour lines in order to insert what it considered to be more needed data including notes on the plans which otherwise would not be legible when reduced in size.
Some review comments respecting the advance plans indicate that with groundwater control the Corps’s designers thought that the designated borrow areas numbers one and two would be adequate. For example, at about RB station 309 scrapers could be used along with a haul road, but operations from borrow area number 2 would require the use of draglines, a causeway and trucks. Unfortunately, the Corps destroyed all copies of its advance plans. These comments, which were found in the Corps’s records during plaintiff’s discovery, indicate that there was disagreement within the Corps as to the adequacy of the designated borrow areas. Some commented that these areas “looked poor.” One comment was that borrow area number 3 was “marginal” because it contained soft, low strength Class II material which is not good foundation material for a levee.
Immediately prior to completing its final Plans for the Project, the Corps performed a “constructibility review” of the Project. This review involved a site visit, evaluation of both the Corps’s and the contractor’s quality control procedures, potential management or compliance problems and final revisions to the Plans. Once this work was completed, in accordance with standard practice, the final set of Plans were then reduced by one-half, trimmed and bound, checked again, circulated one last time for comments and final revisions and then made available for bidding.
In this review process the Corps omitted some, but not all, of the swamp symbols that had appeared in the GDM. In other areas a few swamp symbols were erroneously shown in dry areas. In any case, in the more critical areas near RB station 299 east of Cut-Off Lake, swamp symbols as shown in the GDM were similarly shown in the final Plans. Since the advance plans were never found, the record does not show what those plans contained or how they varied from the final Plans. Also, it is not known exactly what data the Corps used in preparing the final Plans. However, in the process, in ac *360 cordance with its standard practice, the Corps first placed contours (derived from aerial photographs and photogrammetric techniques) and other data on the relevant drawings and then superimposed cross section, levee alignment, borrow and soil boring data on the drawings. The boring data did not show all boring information which the Corps had developed, but it did include soil classifications, most 15-minute water levels, and data showing the liquidity and plasticity of soils, among other things.
The Plans also described stations along the levee. These stations helped to locate the levee in relation to the lake, the borrow areas and the various structures. A station is a measurement that is 100 feet long. The Plans indicated that the right bank levee started at station 122 + 95 and went to station 500 + 55 near the Missouri River, and that the left bank station started at 122 + 00 and went to 495 + 13.4 at the outlet ditch below the concrete structure at the Main Stem structure, the ending station. The Plans required clearing approximately 306 acres. Of that amount, 260 acres were required for right-of-way and approximately 46 acres for designated borrow pits.
The Plans showed only three points at 622 MSL or less by contour lines. These particular contours appear along the west side of Cut-Off Lake where the Corps’s Plan topography intersects the Plan profile. The average variation between the Corps’s Plan and profiles for these points (which were produced by actual surveys), is 1.06 feet or very close to the one-foot standard of accuracy, one-half the two-foot contour interval, which is often applied to contours. Well over a majority of the contours shown on the Plans were within the one-foot standard of accuracy-
The 620 contour line, as it appeared on the manuscript map, contained a question mark without explanation. However, the Plan’s 620 contour line did not show a similar question mark. The Plan’s 620 contour line was shown as crossing over a rock weir or small dam. The Plans specified that this weir was to remain in place. (Hardwick’s later survey determined that the actual height of the weir is at 618.5 MSL.) The weir was built in the early 1970’s to permit better control of the lake’s level. The weir was designed for a height of 618.5 MSL. However, someone later added a hinged door (possibly to benefit water fowl hunters) which, when lowered, effectively raised the lake’s level by about one or two feet, or to approximately 619 or 620 MSL. Some residents in the Brunswick area knew that when the lake was at 619 MSL or above, fields adjacent to the lake would not readily drain.
The Plans also contained hydrologic, hydraulic, precipitation, Missouri River hydro-graphs and other data relating to the Palmer Creek area. However, the Plans gave no specific indication of back-water frequency and duration for particular areas that might be the most affected. The Plans clearly showed swales, or irregular surfaces, in certain areas. Swales are an indication that ponding can occur in low areas particularly when an existing drainage way becomes plugged. However, these low areas cannot be precisely identified from the Plans. The GDM and other internal memoranda and correspondence recognized the possibility of ponding in areas adjacent to the levee. However, with this Project, the Corps did not require that the District obtain ponding easements from the affected landowners (the Corps made the District responsible for damage to landowners due to ponding beyond the areas obtained by easements). Thus, some ponding areas, which otherwise would have required easements from the landowners, were omitted from the Plans due to the agreement between the Corps and the District.
The Plans provided for a number of interi- or drainage ditches and CMP structures. The Corps located these ditches and CMPs by reference to existing drainage patterns. Although the Plans did not clearly reflect the possibility that such drainage ditches and structures might require modification — i.e., being raised, lowered or moved to another location — at additional cost to the contractor, such modifications are usually necessary in building Missouri River levees because there can be no assurance that the drainage patterns will remain the same once the levee is built.
*361 The Corps’s field survey notes, completed in 1975, contained some lake levels — 620.92 MSL, 621.24 MSL and 620.9 MSL — at three different right bank stations on the levee. However, no dates were shown. The Plans did not represent that the lake levels would never exceed 620 MSL. In fact, the lake levels shown on drawings A-4 and A-8, measured on June 24,1970, were 619.5 MSL and on drawing B-6, measured in March 1971, were also 619.5 MSL. The GDM of July 1971 stated that the existing normal lake level varies between 618 to 620 feet above MSL. This fact indicates that during the design phase the Corps may have assumed that 620 MSL was the height of the weir and perhaps the normal height of Cut-Off Lake. In any event, by agreement with local interests, the Corps determined that a minimum desirable lake level should be maintained during construction. The level the Corps chose was 620 MSL.
The Corps attached hydrographs to the Plans showing daily elevations on the Missouri River at the Corps’s Glasgow gauge (at river mile 276.3) for the years 1929 to 1976. However, the Plans did not show any hypothetical runoff data developed for the individual drainage areas at the Project site.
The Plans showed the course and elevation of Palmer Creek as it existed prior to commencement of construction. For example, the Plans showed a variance from 613.5 MSL approximately 2000 feet north of the old mouth of Palmer Creek to 617.0 MSL approximately 5000 feet south of the outlet for the lake. However, the Plans omitted the rating curves (graphs of the water surface elevations of the Missouri River at various flows) for the point of confluence of Palmer Creek with the Missouri River (mile 241.79), the plotted water surface profiles at various Missouri River stages from the Glasgow gauge to Palmer Creek, the correlation data relating to Missouri River elevations at the Glasgow gauge and river elevations at the site, the 13.8 foot average water surface elevation (for the twelve-year period from 1964 to 1976) at the Glasgow gauge and the capacity of the Missouri River at the mouth of the new channel of Palmer Creek (where it was to be relocated upstream) which the Corps had estimated pre-bid to be 160,000 cubic feet per second (c.f.s.) when the river was at flood stage (624 MSL), as fixed at the Glasgow gauge.
The Plans made no reference to the need for stability mats in connection with the possible use of draglines. Some mats can be made at the job site using available logs lashed together with cables. However, more stable mats made of oak timbers fastened with cables and clamps and fitted with special long timber spikes require more time to make and are more costly. Both types of mats are primarily used as a base for drag-line operations under wet soil conditions and require that the dragline operator move the mats into position to support the dragline when it is being moved.
The Plans required that embankment material be placed in two-feet-thick, 500 linear feet reaches with a 15 percent over-build, except around the concrete structures. The over-build is to allow the levee to settle over time into the proper configuration. Accordingly, the additional fill material was required to be placed on the top of the levee and sloped down to the toe of the levee on each side, but to the same base dimensions. Thus, inherent in this particular design is some degree of initial structural weakness because this requirement necessitates steepening the slope. However, that effect is diminished as the levee settles.
The contours shown on the Plans were incomplete because of obliteration caused by the superimposition of notes and other written information on certain Plan drawings. This obliteration occurred in areas of the job site which were both critical — i.e., having low elevations — and noncritical.
The Plans omitted reference to maps showing the location of an old Missouri River channel that existed before Cut-Off Lake was formed in the late 1880’s. Some of these old maps were in the Corps’s files when the Project was advertized for bids. However, the Plans did refer to the possible presence of a sunken river boat in one of the borrow areas.
The Corps’s field survey notes contained some boring data, including blow count data, *362 that was not in the Plans and revealed additional swampy areas other than those depicted on the Plans. The notes also contained references to higher lake levels than were stated in the Plans and to adjustments respecting survey control points. Written notices of the availability of the notes were sent to bidders approximately one week before the bids were due. The Corps amended its pre-bid information by mailing to prospective bidders on April 20, 1977, a note stating that field survey notes were referenced as being available for examination upon request. However, Hardwick did not receive its notice until approximately two working days prior to the bid due date. None of the bidders examined the field notes or sought a postponement of the due date to permit a reasonable time for examination of the notes. Neither the notice nor the field notes contained any representation or warranty of accuracy or correctness.
The Plans contained warnings of potential job-site wetness and the weak nature of the soils in some areas. For example, they revealed that the job site was close to the Missouri River, the lake and Palmer Creek; that the respective water levels of these bodies could fluctuate; that the Missouri River levels were subject to great variations due to many factors as shown by hydrographs; that the lake elevations (as of June 24,1970) were noted; that the Plans gave the contractors the uncompacted fill alternate (indicating that excessively wet soils are to be expected); that the site showed a very flat topography, substantial portions of which were between the 620 and 630 contour intervals;' and that Palmer creek was shown as flowing through the job site (with only a 10 to 30 foot width and shallow U-shaped banks) with all of the flow, at one point, directed into the head of a lake having at its mouth a restrictive weir.
By 1976 the Corps’s advance plans and specifications had already been prepared, but the Project was on hold until funding was obtained. This funding became available in May or June of 1976. Therefore, the Corps gave notice of the Project in January 1977. On March 14, 1977, the Corps, on behalf of the United States of America, formally advertised the Project for bids identifying it as “Levee Unit No. L-246 Project, Stage I. Invitation For Bid (“IFB”) No. DACW41-77-D-0055.”' The IFB contemplated submission of a fixed-price sealed bid for performance of the work on the following basis for the major work items: a lump sum for the clearing and grubbing; unit prices, extended for estimated quantities in cubic yards set out in a bidding schedule provided by the government for levee fills and excavation; an amount based upon linear feet for the CMP to be used in various structures; the amounts, in cubic yards icy’s), for concrete and pounds of reinforcing steel for the two reinforced concrete boxes and also for the riprap and other rock materials. Further, the work was described as follows: building approximately 14 miles of earthen levee embankment (est. 949,800 cy) along the left and right banks of Palmer Creek above Cut-Off Lake; constructing a levee around portions of the lake, primarily along the west side, along the right bank of the creek and below the lake and down to the Missouri River’s left bank levee; excavating approximately four miles of new channel for portions of the creek, both above and below the lake; constructing two large reinforced concrete box culverts, one designed with automatic flap gates, for operation of comprehensive flood control systems, one at the mouth of the lake at about Station 400 — the 400 structure — and one where the creek was to be redirected to empty into the Missouri River at about Station 500 + 50 — the Main Stem structure; placing 18 CMP’s through the levee at various locations for interior drainage; and placing slope protection material (riprap) around various structures. The Plans showed that the levee when completed would vary in height from seven to 14 feet depending on existing ground elevations.
During the six-week period from March 14, 1977, to bid opening on April 27,1977, Hard-wick representatives obtained and reviewed the bidding instructions, studied the Plans, visited the job site, interviewed local residents, prepared “take-off and quantity estimates” and determined to submit a written bid for the project. Hardwick made two site visits, the first on April 11, 1977, and the second on April 23, 1977. Ted Hardwick, Golie Hardwick and Deneen Hardwick all *363 visited the site during one or both of those two visits.
Deneen Hardwick, during his site visits, examined areas to be traversed by the levee, estimated the amount of timber that would have to be taken out, estimated the size and suitability of the designated borrow areas, determined the amount of trees and brush that would require clearing, viewed the areas where the main concrete structures were to be placed, took soil samples using a two-inch hand-held dynamite auger (so called because it is also used to drill holes for dynamite sticks), tested the stability of the sod at various locations using a small pole five to six feet in length, viewed the old levees to determine the amount of material available in them, estimated the distances required for operating scrapers, appraised the adequacy of the area’s drainage, estimated the flow in Palmer Creek, and, based upon the contours shown on the Plans, generally attempted to judge the height of the levee in relation to the surrounding area.
Deneen Hardwick also discussed the Project with a number of local residents. He talked with Charles Manson, a former employee who had worked on similar jobs and was later hired by Hardwick to work on the Palmer Creek job. Mr. Manson, who was also a farmer, was very knowledgeable about conditions at the site. At the time Mr. Hard-wick talked with him, he was serving as a Commissioner in the Brunswick-Dalton Drainage District and, thus, was in favor of and had long known about the proposed levee. In fact, it was Mr. Manson who first informed Hardwick of the availability of this work. Mr. Manson testified that he actually knew that the slope of the river from the mouth of Palmer Creek to the Glasgow gauge was approximately one foot per mile and that a reading of approximately 18 or 19 feet at the Glasgow gauge would flood the creek all the way up into Cut-Off Lake, even though the stated flood stage (which would overflow the Missouri River levee at Palmer Creek) was a reading of about 24 at the Glasgow gauge. Mr. Manson knew about potential wetness problems at the site from his personal observations during prior years. However, Mr. Manson was not asked about and, therefore, did not discuss these matters with Deneen Hardwick prior to Hardwick’s bid.
Also, Deneen Hardwick talked with Frank Parker, another area resident and former Hardwick superintendent. Mr. Parker was also familiar with the Palmer Creek area and, if asked, could have advised of potential wetness problems at the site of the proposed levee. He, too, was not questioned by Mr. Hardwick about these matters. In fact, Mr. Hardwick did not question any local residents about the slope of the river or possible effects of heavy rains and Missouri River floods on Palmer Creek or the job site.
Although experienced in earth work and in estimating levee jobs, Deneen Hardwick had difficulty during the site visits in correlating Plan data to exact locations. Although he noted that at two locations the levee would be required to cross two arms of Cut-Off Lake, he concluded that any crossing problems could be handled simply by placing a blanket of dirt down at these locations using small scrapers. Mr. Hardwick also noted that Cut-Off Lake levels, according to the Plans, were shown at 620.5 MSL near the rock weir and that farming operations existed on both sides of the proposed levee right of way, which he thought would not be possible ordinarily if the site historically was extremely wet.
At the time of submitting its bid, Hardwick had adequate capital, an excellent credit rating (it had never been refused bond coverage for its jobs), adequate equipment in relatively good condition and experienced personnel with expert knowledge in performing levee work in floodplains. In addition to the Hard-wick family members identified above, its experienced personnel included Alan Haber-man, a partner in the firm; Joanne Haber-man, Alan’s wife, who handled some bookkeeping and administrative functions; Lloyd Ferguson, a project engineer; Grover Rodgers, a project superintendent; Jim Myers, a civil engineer; and Clarence Morning, also a project superintendent and an experienced dragline operator. Except perhaps for Charles Manson, who at the time of submission of the bid was not a Hardwick employee, most of these personnel were listed on Hard- *364 wick’s report to the Corps dated April 30, 1977. That report also included an equipment list.
Hardwick priced its bid on the compacted fill construction method which contemplated the use of rubber-wheeled tractor scrapers and dozers for placing most of the fill materials. Levee construction with this method requires that the levee must achieve at least a 90 percent compaction rate on a standard proctor test (generally obtained by using special compaction equipment such as sheep’s foot rollers). Thus, compaction tests are routinely taken during construction. However, when a levee job is bid on the basis of the uncompacted fill alternate, most of the placement work contemplates using draglines, dump trucks and dozers. This second method allows for dragline placement of excessively wet materials directly on the levee. Because Hardwick’s bid was on the basis of the compacted fill method, approximately 20 percent of its bid price was based upon discing and rolling the fill. Also, it’s bid contemplated the use of the designated borrow areas in the Plans, rubber-tired scrapers (Terex models 14’s and 18’s having twin engines for push-pull operations and floatation size tires), an average scraper haul of approximately 3500 feet from the designated borrow areas, an average of five scraper loads per hour, D-8 size bulldozers in the borrow areas, a D-6 size dozer on the levee to spread fill and a six-inch pump on a cart with its own motor to dewater the 400 structure, and, because of the requirements of the Plans for a greater structure at the 500 station and a larger dewatering effort, a system of well-points for dewatering at that location. 6
Hardwick’s bid did not allow for the use of stability mats for dragline operations because it concluded that by using low ground pressure dozers, which can operate in wet soil conditions, such mats would not be needed. However, even low ground pressure equipment may need stability mats to operate if conditions are sufficiently severe.
Hardwick noted that the Corps had approved five material sources for the riprap, all of which were within close proximity to the job site (the average distance was only 15 miles). Thus, Hardwick’s bid was based upon a delivered cost of $7.10 per ton. It did not, however, contract with any supplier at the time of making its bid to assure that the approved riprap would be available when needed. Further, its bid contemplated moving approximately 813,000 cubic yards using an average of nine operators at $11.70 per hour for the earthwork at an average cost of approximately $1.25 per cubic yard (for all fill materials).
In sum, Hardwick’s bid considered numerous relevant factors including site conditions, available equipment, its financial condition, its work in progress, its other work under contract but not begun, the distance of the job from its home office, potential mobilization costs, potential overhead costs and its own related experience. Hardwick based its estimate of the average scraper haul upon the location of the borrow areas, their condition as noted during the site visit and the available rights of way.
Hardwick’s bid required about four weeks to prepare and was hand-carried to the Corps in order to assure meeting the April 27,1977, deadline. Its total bid for all of the work was $3,066,915.
Prior to advertising for bids, the Corps usually estimates what it considers to be the approximate costs of performing the work in order to determine whether the bids it receives are reasonable and within its projected budget for the project. Ordinarily, if the bids the Corps receives are not within the range of its reasonable estimate, a project must be reassessed and perhaps redesigned to lower costs. In such case the Corps will not allow a levee construction project to go forward on the advertised basis. Thus, the Corps’s reasonable estimate helps to assure *365 that the government is getting a fair contract price.
In general, the Corps attempts to have its estimate fall between the second and third lowest bids, assuming a 10 percent profit is allowed for the contractor. Its estimate takes into account numerous factors, including the specified contract period; the number of weather days allowed for the work; the equipment selected; the requirements set forth in various manuals; historical data; previous jobs; the Corps’s expertise; information in its files; and any relevant formal job training of its personnel, including training in preparing such estimates.
Some Corps personnel involved in inspection at the site had never before been involved in a project using the uncompacted fill alternate. That alternate was not included in the Corps’s advanced plans. When the Corps added the uncompacted fill alternate, it also changed the related three-foot lift thickness requirement to a two-foot lift thickness requirement. This change was done after the Project was advertised for bids based upon the internal comments of Corps personnel, the Corps’s experience with the uncompacted fill alternate and its desire to potentially achieve a lower construction costs resulting from that method of construction.
The evidence shows that the Corps’s estimate was based upon various assumptions— that the compacted fill method of construction would be used, that the contractor would experience relatively normal weather and normal river conditions, and that approximately 35 percent of the work would be done by draglines and dump trucks while the remaining 65 percent by scrapers. The Corps also contemplated using “sheepsfoot rollers” for compaction of the fill, a water truck, haul roads from the designated borrow sources, dozers and other equipment.
The Corps’s projected quantities were based upon the use of large scrapers (model TS-657’s) having rated load capacities of 32 cy “struck,” or level, and 44 cy “heaped.” The Corps also used a “swell” factor for wet clay to get the amount of “loose” (uncompact-ed) cy that would normally be transported. Thus, the Corps estimated that approximately 18 percent more loose dirt would require transportation to the levee site than if the dirt was in its natural and more compacted state. 7 Although the Corps improperly included some minor items, such as lab facilities, fencing and buildings, deleting these items would not have materially lowered its reasonable estimate.
The Corps’s estimate was also based upon its manuscript maps (containing contours and surveyed elevations), the GDM, field notes, site visits, Missouri River hydrographs, past flood levels, records of precipitation in the area, and the particularized and expert knowledge and experience of its Kansas City and Glasgow office personnel. Although the Corps did not base its estimate upon the use of draglines as the job was ultimately performed by plaintiff, it did conclude that at least one-third of the material would be too wet to be hauled with scrapers and would have to be top-loaded by draglines and hauled by dump trucks, that it would be necessary to maximize the number of hours worked during the drier time periods, that overtime should be allocated to work extra hours during expected dry periods, that wet job-site conditions would limit the amount of material that could be hauled per scraper load, that conditions would limit the average load to approximately the minimum rated load capacity of the scrapers to be used on this job, and that loading and unloading wet materials, because of adhesion, would require added handling time. 8 The Corps’s estimate *366 for the Project, based upon the foregoing factors, was $3,137,725.
On April 27, 1977, sealed bids were opened. Hardwick was the apparent low bidder at $3,066,915. All other bids were substantially higher than Hardwick’s and List & Clark’s bids, as well as the government’s reasonable estimate.
On May 27, 1977, the parties entered into Contract No. DACW41-77-C-0126. The Contract included standard provisions relating to changes made by the Contracting Officer, differing site conditions, materials and workmanship, inspection and acceptance, superintendence by contractor, conditions affecting the work, site investigation and special provisions relating to commencement, prosecution and completion of work, physical data, damage to work, site work, groundwater control, requirements for fill placement and compaction, uncompaeted fill alternate, settlement of foundations, slides and placement of concrete. Hardwick received its notice to proceed on June 9,1977.
Section 2A-4 of the Contract, entitled “Plan of Operations,” required that Hardwick submit an overall plan of operation for the Project within 10 days after notice to proceed. Hardwick, by letter dated June 13, 1977, written by P.M. Rayback, submitted a progress chart for the Corps’s consideration and approval. Thereafter, Mr. Rayback enclosed an outline of Hardwick’s plan of operations with a letter to the Corps dated July 12, 1977. That letter noted that after negotiation of subcontracts for the concrete structures and drainage structures, the contractor would submit the plan of operation for such structures as a supplement. 9 By letter dated August 11, 1977, Hardwick submitted a revised proposed progress chart for consideration and approval. By letter dated August 29, 1977, John P. Elmore, the Corps’s Chief Inspector and designated representative of the Contracting Officer, gave notice of approval of Hardwick’s overall plan of operation. Similar plan letters from Hardwick were sent to Mr. Elmore at various times covering facets of the work including clearing, trash burning, grubbing, burying of stumps, stripping, fill placement and channel excavation, construction methodology and the like. The first construction operations Hard-wick performed after mobilization consisted of clearing, grubbing and stripping work. 10
Although the Corps criticized Hardwick for not immediately pushing debris into piles to increase the drying time of the soil underneath, Hardwick’s practice of not creating large piles of debris facilitated its operations by allowing rain to wash dirt from the stumps so that they would bum more easily. Further, Corps inspectors criticized Hard-wick for pushing limbs in the foundation which might cause small holes which might collect water. However, Hardwick viewed these criticisms as minor matters and nothing more than Corps nitpicking. In an effort to save Hardwick time and money, the Corps agreed that, after stripping, Hardwick would not need to perform surveys for later computation of quantities as required by the Contract. Accordingly, the Corps agreed to base payment on % foot of material.
Hardwick’s equipment, although much of it was used, was in fair-to-good condition when it was mobilized for the Project. Hardwick promptly scheduled equipment for repair when it broke down and consistently performed routine maintenance during construction. During the early months, but after severe weather had begun, Hardwick’s equipment frequently required repairs. 11 At one *367 time, Hardwick had to have dozer engines rebuilt at costs exceeding $5,000. Repair costs of one low ground-pressure dozer amounted to approximately $15,000. The dragline booms sometimes needed repair as well. However, the large scrapers, the Te-rex TS-18’s, needed less repairs because they were almost new when delivered to the job site. Although most of the repair work was done at Hardwick’s headquarters in Beardstown, Illinois, some field repairs were required. In sum, the type, location and total cost of equipment overhaul and repair work which Hardwick performed, largely depended on many factors including the weather, the relative difficulty of the repair work, the time involved and the experience and skill of the repairmen.
Hardwick mistakenly excavated for certain drainage structures before taking original cross sections as required under the Contract. However, both parties regarded this as a minor oversight. Further, although Hardwick operators occasionally knocked down wooden stakes or temporary bench marks, which must be securely placed out of the way of the equipment to direct the operators in their work, these stakes were prompts ly replaced by Hardwick. However, Corps inspectors criticized Hardwick for not placing sufficient stakes on the berms, on the various types of fill and at the toe of the levee, which required at least a five-foot offset.
As a general rule, Hardwick successfully hired qualified equipment operators. Thus, Hardwick had no significant labor problems on the Project. In fact, all of Hardwick’s employees knew one another and worked well together. For example, even when Hardwick faced abnormal ice conditions during winter clearing operations, with its competent and motivated operators it was able to maintain high productivity levels. Hardwick dozer operators once performed difficult bridging work by pushing sand fill into the lake crossings. Although at one point this caused impoundment of water on the land side of the levee, the problem was promptly and adequately remedied. Partly because of the skill of its operators, Hardwick effectively used wide-track or floatation dozers. Such equipment was especially effective in wet areas to free stuck equipment and clear ahead of the 200W dragline.
When good material was available, Hard-wick only needed to make one or two dozer passes on each lift in order to reduce individual loads and eliminate any “large open voids” (as required by the Contract) before placement of the next lift. However, Corps inspectors sometimes required Hardwick’s dozer operators to scarify the surface of the levee after completing placement of a lift to assure bonding of the next lift. Additionally, Corps inspectors sometimes required dozer operators to keep working the lifts by making extra passes until they were satisfied that the last lift was sufficiently solid or compacted to allow placement of the next lift. The material on occasion was so poor it was akin to clabbered milk, thereby requiring dozer operators to push the wet material up from the sides of the levee to keep it properly shaped. Often, when conditions were particularly bad, Hardwick operators could find no place for the water to drain naturally from the levee site. For example, water could not drain into Cut-Off Lake or into Palmer Creek when they were at high levels. Also, under these extra wet conditions, Hardwick had no place to pump ponded water alongside the levee.
Although, initially, Hardwick’s work was not substantially delayed by wet weather, when wet conditions occurred, first beginning in late summer of 1977, the clearing, grubbing and stripping operations were significantly delayed and, in fact, these preliminary operations required about one year to substantially complete. Hardwick experienced the most difficulty in such operations west of Cut-Off Lake between RB stations 240 and 400 because of a combination of wet conditions and the presence of soft soils. These conditions provided weak support for scrapers and dozers. Also, Hardwick often had to both push and pull scrapers out of the designated borrow areas once filling operations began. Further, dozer operators, during the preliminary clearing operations, often had to push timber out of 12 to 18 inches of water and contend with pumping of water in the levee foundation area due to moisture underneath the surface. Rutting and pumping *368 caused by the tires of the scrapers and the tracks of the dozers, were also a serious problem during early operations, until the levee had been built up several feet.
The first clearing work was done near the Missouri River but high water forced Hard-wick to halt this work and switch to working above Cut-Off Lake, where some clearing could continue. At that time Hardwick also performed some surveying and staking of the levee work in preparation of placement of fill. Later, during filling operations, Hardwick, ■within its discretion, often chose to dress or seal the top of the levee using a dozer blade rather than a rubber-tired roller. Sealing is necessary to prevent rain water from penetrating into the levee and weakening it during construction.
On September 14, 1977, some of the worst flooding in Missouri River history occurred. 12 That flood raised Missouri River levels to such heights that much of the Palmer Creek job site was inundated. During this period of unusually high water, Palmer Creek could not discharge its flow into the river.
Hardwick complained to the Corps that severe flooding in the Missouri River and Palmer Creek had deposited some quantities of silt, grass, mud and other debris on the job site. Sometimes no removal of debris or redressing of the levee could be done until water levels had receded. The Corps rejected Hardwick’s claim under its interpretation of the Contract. Thereafter, Hardwick made the repairs at its own cost. However, at that time Hardwick did not pursue the matter by submitting a formal claim for damage to completed work under the Damage to Work clause of the Contract.
In September and October 1977, at the instigation of Paul Whaley, density tests of soil samples taken from the levee were performed to determine the degree of compaction being obtained. The Corps usually establishes a Proctor curve as a preliminary step to performing such tests. Thereafter, it uses the “sand cone method” to determine the density achievable at specified moisture levels. The Corps performed these tests upon samples taken from stations west of Cub-Off Lake. The Corps found that Hard-wick’s operations were resulting in approximately 90 percent compaction of the fill— well within specification requirements. In fact, a rate of 90 per cent is usually obtained only when the compacted fill method is used.
During the remainder of 1977 and in early 1978, extremely wet conditions continued and disrupted the orderly progress of the work. In fact, at times fill placement was exceedingly difficult, if not impossible, except in limited areas where equipment could gain access to the job site. Some work around Cub-Off Lake was done when the ground was frozen. Casting with the draglines was particularly difficult in some areas because of the lack of dry places to allow the dirt to drain or dry out. Even with use of dirt from the existing levee between stations 400 and 450, wet conditions often required that the scrapers haul only half loads. Moreover, fat clay soils acted as a moisture barrier and held the water “like a bowl.” Thus, extraordinary preparation sometimes was necessary.
Once dragline operations began, Hardwick often had to handle the same loads of dirt four or five times before casting onto the levee, to facilitate drying. Sometimes the draglines were the only machines that could get near enough to the dirt to work it. Also, the dragline operators frequently had to use specially made timber stability mats to avoid getting stuck when moving the draglines. These mats, were about 5 x 20 feet and functioned much better than log mats made from timber cut at the site. They were usually placed ahead of the draglines when the draglines were being moved over wet or saturated soils. The need for mats significantly slowed Hardwick’s production.
Hardwick’s implementation of a long-range plan of operation was impeded by daily changes required in its operations stemming from the recurring Missouri River flooding and high water conditions. On occasion few dry places existed in which to work. In fact, Hardwick had only 58 days when work was *369 feasible during the 1977-78 season. Also, at times, Hardwick encountered operating problems due to snow and ice.
At one point Hardwick was prevented from doing an adequate and timely plan layout due to high water. Also, after the work areas had been properly staked, high water levels often caused these stakes to float away thereby requiring time-consuming replacement work. Hardwick was required to provide the Corps with progress charts indicating the work accomplished pursuant to the plan. The Corps sometimes delayed in approving these progress charts until it was satisfied as to their accuracy.
After experiencing very wet conditions from high water levels which inundated various parts of the job site and caused operating inefficiencies, Hardwick concluded that CutOff Lake had to be lowered to obtain a sufficiently dry site to build the 400 structure. Additionally, Hardwick determined that a diversion ditch, ring levee and approach channel would be needed during the construction of the 400 structure.
The events which thereafter occurred in late December 1977 and in January 1978 are somewhat confused due, in part, to the non-sequential manner in which the evidence as to these events was presented. However, it appears that on or about December 20,1977, shortly before Hardwick was due to submit its formal plan for constructing the 400 structure, Corps and Hardwick representatives discussed Hardwick’s proposed plan. By that date, December 20, 1977, the Corps’s field representatives and higher level staff recognized that in certain critical areas west of the lake some Plan elevations were in error. Representatives from Hardwick who attended this meeting including Golie Hard-wick, Charles Manson, John Sutterer and Jim Meyers. Howard Gillen, who was at that time Chief of the Supervision and Inspection Branch within the Construction Division, and Mr. Elmore were among those who attended this meeting on behalf of the Corps. The parties vigorously dispute what transpired at this meeting. Unfortunately, there are no meeting notes to support the contentions of either plaintiff or defendant respecting the discussions which took place regarding the contours shown on the Plans.
Immediately after the December 20 meeting, Golie Hardwick, wrote a letter dated December 21,1977, to Mr. Elmore, which set forth in detail Hardwick’s proposal for a plan of operation for the 400 structure. The letter noted that on December 21, 1977, the water surface of the lake was at elevation 620.5, that placement of the structure would incur difficulties unless the plan was approved, that closure of the proposed diversion ditch back to natural grade would be made by September 1,1978, to “enable water surface elevation to rise to 620.0 which is grade of top of existing rock weir remaining in place” — an error, since the rock weir’s top grade was actually at 618.5 — that the proposed ring levee would protect the structure while it was being constructed and that the diversion ditch and ring levee would not be completed until after the closing of the water fowl season on January 2, 1978. The letter also noted that Hardwick expected to begin construction on April 1, 1978 and to dewater to elevation 609.0 as required for the front toe of the structure. No mention was made in this letter, however, of any Plan contour errors.
Another memorandum, also dated December 21, 1977, and apparently written by the Corps’s John Morris (he was also an attendee at the December 20 meeting), stated, in part, as follows:
Howard Gillen called and informed me that he and Dean Schuster was [sic] in agreement that the contractor has the right to lower the lake El. to El. 619.5 as shown on the contract drawings. He was informed that the contractor’s detailed] plan of operations for the structure at sta. 405 + 00 will indicate a diversion channel with a flowline of El. 618.5 to allow the foundation to dry so he would be able to construct a ring levee and to excavate the approach channel.
Subsequently, Mr. Morris wrote a memorandum relating to the meeting which was signed by Mr. Elmore, his immediate superi- or. That memorandum reveals that the attendees discussed the lake elevations as follows:
*370 ... the elevations (shown on the plans) for the lake were at 620.5 ± and the ground el. in the vicinity of stas. 270 + 00 & 300 + 00 varies from el. 619 ± to 620 ±. The contractor feels the lake surface el. will have to be lowered to el. 618.5 before he can preform [sic] the required foundation work. I concur with his feelings.
Howard Gillen, responded by writing a brief memorandum dated December 30, 1977 instructing that a site visit be made before giving approval to the Hardwick proposal.
On December 28, 1977, Mr. John Morris, again for Mr. Elmore, wrote a memorandum addressed to “Chief, CD-I,” which stated the following:
1. Due to the controversial issue of the surface elevation of Cut-Off Lake, the Contractor’s proposed detail plan of operation for drainage structure R.B. Sta. 400. + 5 is being submitted for your review and comments prior to action being taken by this office. This type of plan is necessary to allow the required work to be constructed in the ‘dry’.
2. The Contractor’s proposed plan will lower the surface elevation to 618.5 which he considers a minimum but sufficient drawdown to allow the construction to proceed in the dry. (It is questionable if this will be a sufficient drawdown.) This draw-down is necessary to provide a stable foundation to allow for construction of the upstream ring levee and excavation of the approach channel and structural excavation. Dry conditions are also necessary for processing the levee foundation in this area. Also, the Contractor anticipated completing the concrete work and embankment to El. 628 and make closure by 1 September 1978. This closure date should allow the fall rains to recharge the lake to El. 620 or 622. A 618.5 surface drawdown elevation would allow for revegetation of the areas normally inundated. This would allow a desirable habitat for both the water fowl and fish once the normal surface elevation is obtained.
3. The 618.5 surface elevation will also drain the low areas at approximately R.B. Sta. 266 + 00, R.B. Sta. 291 to R.B. Sta. 301 + 00 and borrow area No. 2. The original X-Seetion notes (by K.C. District) indicates the elevation in the areas to vary between El. 619 to El. 620. The plans show an elevation of 621 +. This is felt to be a changed condition and the Contractor could make a claim if these areas are not allowed to be drained.
4. The Contractor’s proposed plan is a step in the right direction and approval is recommended.
(Emphasis added.)
Under the Corps’s normal procedures, if the Corps determined that an event was a changed condition, based upon clear, concise and factual determinations, a contract change ordinarily would be negotiated and formally executed. In this case, Corps officials, upon review, determined to investigate further. Accordingly, the memorandum was sent to the levee’s designers for review because it was “essentially a design problem.”
Mr. Barber subsequently wrote to Mr. El-more, the Resident Engineer, referring to Mr. Morris’ memorandum written on behalf of Mr. Elmore, as follows:
We do not agree with paragraph three of CNT-1, that the profile and cross sections notes .that vary one or two feet from the drawings would be a sufficient basis for a contractor’s claim of changed conditions. This is a very strict and dangerous interpretation.
(Emphasis added.)
Based upon Mr. Morris’s memorandum and pursuant to Mr. Gillen’s instructions, Messrs. Schuster, Holloway and others accompanied Mr. Morris to the job site to “confirm field conditions.” They toured the site on January 5 and 6, 1978. Apparently, no Corps official ordered an instrument survey to confirm the accuracy of the bench marks or the contours shown on the manuscript map which may have been brought into question by the memorandum. Further, no written investigative report of the trip was prepared respecting the group’s observations and conclusions. All of the working files, including any investigative memoranda, *371 were subsequently either lost or destroyed. 13 Hardwick was not informed of the Corps’s internal investigation resulting from the memorandum prior to this litigation.
Mr. Gillen, Mr. Morris’s superior in the Corps’s chain of command, forcefully brought his opinion about the memorandum to Mr. Morris’s attention. He told Mr. Morris that the variance should not be referred to as a “changed condition.” Thereafter, Mr. Morris’s opinion was also not disclosed, in keeping with standard Corps practices. Mr. Morris was not experienced in map making, topographic contours, National Map Accuracy Standards and related matters. However, he was a qualified Civil Engineer and a responsible Corps official.
On January 27, 1978, Rick Krueger, an environmentalist, along with Larry Cavin and Mel Jewett of the Corps’s environmental group, called Mr. Elmore to discuss the difficulties being encountered at Cut-Off Lake. Mr. Krueger’s telephone memorandum form indicates the following:
John then said they wanted to lower the lake to at least 618.5. He said the areas between Stations 250-270 and 291-300 would not be dry at 619.5 which were the critical areas for draining in the first place. The reason, he said, was the contour map was off in those areas, and that the land is actually lower than what the map shows.
Hardwick generally regarded Mr. Elmore as fair in his interpretation of the specifications. Mr. Elmore remained as the Corps’s Chief Inspector and authorized representative at the job site until June 4, 1978. At that time the Contracting Officer officially designated John D. Palmateer as the authorized representative.
Mr. Palmateer’s assumption of Mr. El-more’s duties on the Project had an immediate impact upon Hardwick’s performance because of his more stringent interpretation of Contract specifications. For example, Mr. Palmateer immediately voiced concern with respect to the contractor’s priority of work shown in its plan of operations. However, after subsequent correspondence, Mr. Palma-teer finally approved the various modified plans of operation as submitted.
On a Sunday in early 1978, Hardwick learned that the Missouri River was about to flood. Charles Manson, without prior Corps approval, installed a temporary cross levee consisting of two old modified railroad cars with flap gates in Palmer Creek close to the river. This was done as an emergency measure in an attempt to avert crop damage from expected high river levels. While Mr. Palmateer was informed of this proposed action beforehand, he neither approved or disapproved of the action. Hardwick’s installation prevented serious crop damage from high river levels. The Corps allowed the cars to remain in place until they were no longer needed.
Because of the extent of inundation of the job site, Hardwick soon determined that designated borrow areas numbers 1 and 2 would likely never be sufficiently dry to permit their economical use with scrapers even if dozers were used to push them to assist their loading or even if draglines and dump trucks were employed in these borrow areas. Therefore, Hardwick decided to abandon the compacted fill method of construction and to seek the Corps’s approval of the uneompaet-ed fill alternate allowed by the Contract. After discussions with Corps officials about the proper procedure to gain approval of the changes Hardwick contemplated, Hardwick submitted a Value Engineering Cost Proposal (VECP) to the Corps for approval.
The VECP is a device which allows a contractor to implement an innovation while permitting both parties to share in the savings which the idea produces. In this case, Hardwick realized that the construction and cost of the levee would be substantially improved if the contractor could abandon borrow areas 1 and 2 and, instead, use other borrow areas at the west side of the lake. Accordingly, Hardwick, due to the use of NW 95 draglines and an 80 percent requirement for double casting (i.e., handling the same bucket load twice in order to reach the levee), submitted its VECP which proposed the use of separately purchased borrow *372 sources both within and alongside the lake and within 300 feet of the levee. The Contract required that Hardwick submit its VECP to the Corps for approval because the VECP involved the use of borrow sources within 300 feet of the levee, which use, through loss of lateral support, could substantially weaken the levee. 14
The Corps took about three months to fully investigate and act favorably upon Hardwick’s VECP. As finally approved, the VECP contained no special handling requirements for drying or manipulation of the material or any prohibition against backward and forward casting. 15 After negotiations, Hardwick and the Corps agreed upon a total savings of $94,000 for permitting lake side borrows within 300 feet of the levee in conjunction with Hardwick’s VECP. Hardwick and the Corps shared in this savings, which actually resulted in a payment by Hardwick to the Corps.
After the Corps’s approval of the VECP, Hardwick repaired the 200W dragline by replacing its engine and other parts, and “walked” it westwardly or up the river to the Project site where it was finally positioned for use west of Cut-Off Lake.
When Mr. Elmore was in charge at the job site, the two-foot lift thickness limit for material cast on the levee, as provided in Contract Subsections E and F, p. 7, 112D-7, meant to the parties that draglines could not cast material any thicker than two feet after manipulation by bull-dozers. However, there was disagreement within the Corps itself as to the meaning of this requirement. Mir. El-more’s interpretation that the two-foot lift thickness limitation applied after manipulation changed upon Mr. Palmateer’s arrival. Thereafter, Corps inspectors complained to Hardwick personnel that the lifts were too thick and too wet for placement in the levee. Moreover, these inspectors specifically referred to the two-foot lift thickness limit in the specifications as the basis for their objections.
At one meeting of Corps and Hardwick representatives at a hotel in Brunswick, Missouri, Corps representatives were asked by Golie Hardwick to allow the levee to be built to the completed height in one operation so that Hardwick’s draglines would not have to be moved back empty or “drywalked” to the starting point of a particular reach before commencing placement of the next layer of fill. Mr. Golie Hardwick told the Corps that, in his opinion, his proposed construction method was more efficient than placing each lift in 500 foot reaches and drywalking the dragline. Hardwick’s request was denied.
Initially, Golie Hardwick acted as Hard-wick’s Project Manager and personally supervised the job. Sadly, Hodgkins disease forced Mr. Hardwick to resign as Project Manager. He died prior to Hardwick’s filing of its claim. After his departure in 1977, Deneen Hardwick assumed the duties of Project Manager. However, he soon found that the stress of attempting to run Hardwick’s Beardstown, Illinois, headquarters and manage the Project at the same time was simply too great. Therefore, Deneen Hardwick resigned as Project Manager, effective about July 1, 1978, and Alan Haberman assumed the position. 16
*373 After the arrival of Mr. Haberman, Hard-wick went forward with work with reasonable dispatch. This was possible because by August 1, 1978, job conditions had begun to improve. Therefore, Hardwick brought in more machines and stepped up the pace of work, thereby allowing it to produce more dollars in payments. In fact, Hardwick completed most of the clearing operations by September 1978. By using larger TS-18 scrapers and wide-track dozers and other special equipment, Hardwick was able to almost double the Corps’s monthly progress payments from $80,000 to about $160,000 and more promptly repair or replace parts and equipment. Also, to increase production, Hardwick, in the fall of 1978, brought in extra equipment, including an extra dragline, two floatation dozers and certain other specialized equipment. However, Hardwick still had problems with equipment breakdowns due, in part, to weather conditions, levee failures, and problems in constructing coffer dams for the two lake crossings west of CutOff Lake. These dams required dewatering with two- to six-inch pumps, the removal of all Class II material and its replacement with approved sand hauled from another area by scrapers. Further, Mr. Haberman had to replace a bridge at RB 402 which had been destroyed by the river, remove mud and debris around the 400 structure by hand and repair wave wash and runoff damage.
One of Hardwick’s major problems, particularly during this period in 1978, was dealing with the Corps’s inspectors who by that time were under the supervision of Mr. Pal-mateer. 17 As previously noted, he was appointed as the Contracting Officer’s representative and Project Engineer, replacing Mr. Elmore, in early June, 1978. 18 Under Mr. Palmateer’s direction, the Corps’s inspectors, including Mr. Paul Whaley, sometimes required work not specifically required by the Contract, regardless of the difficulty of operating conditions. Hardwick, at the time, objected to these inspection requirements, which included the mixing of wet and dry material, drywalking of the draglines, elimination of dragline casting on a carry-a-lift-forward basis (or backward and forward casting), adherence to the specified 500-foot limit for each reach of the levee, casting only when a dozer was present on the fill, added passes with the dozers so that more compaction could be obtained than that resulting from only one or two passes (which was beyond the requirement of removing large open voids), adherence to the same “root rule” which applied to the compacted fill method, meaning that all roots exceeding two inches in diameter had to be picked out of the fill by hand. 19
Mr. Whaley also severely criticized Hard-wick’s staking work, particularly that done under the supervision of Jim Myers. However, many of the errors noted by Mr. Wha-ley in his logs were actually found by Hard-wick and immediately corrected without Corps involvement. Further, although Mr. Whaley’s notations often indicated that something was “wrong” or “off,” he did not define the error, who committed it, specify whether it was a serious error or report what action, *374 if any, Hardwick later took to correct it. Mr. Whaley further criticized Hardwick for:
(1) rejecting his (Whaley’s) suggestion that Hardwick use the end configuration method for determining quantities, a method which he thought would have saved Hard-wick money;
(2) not dressing the slopes as the levee went up — although, admittedly, there was nothing in the specifications requiring dressing at any particular time;
(3) not scarifying the surface of the levee with sufficient frequency to assure bonding of the next lift;
(4) scarifying too far in advance of the next placement (Whaley contended that a heavy rain could penetrate and satínate the foundation and require delay to allow drying);
(5) erroneously placing sand in an impervious zone;
(6) not having dozers working on the fill at all times;
(7) permitting rutting in the levee; and
(8) not having root pickers on the levee to remove all roots which were two inches or greater in diameter.
Mr. Whaley’s criticisms were not supported by defined terms or specific Contract requirements. For that reason, Hardwick complained to Corps inspectors that these criticisms were unfair and represented nitpicking. However, Hardwick usually attempted to respond to them promptly.
Mr. Whaley’s reports do not contain specific criticisms of Hardwick’s compliance with the lift thickness limit in the specifications. Apparently Mr. Whaley interpreted the specification as Hardwick did — that the two-foot lift limit was meant to be applied after manipulation. Further, Mr. Whaley determined compliance with the two-foot limit not by accurate measurement, but rather by a simple visual examination of the lifts as they were being placed and manipulated. In other words, he complained only when the lifts appeared subjectively to be too high. When Mr. Whaley thought a dozer might get stuck trying to manipulate the lifts, he would immediately object because he then considered the material to be too wet. This operational inability was his benchmark for voicing an objection. Mr. Whaley also thought that when the draglines would cast material in piles on the levee fill, each pile had to be sufficiently close together to get the dozer over them, but not so close that when the individual piles were knocked down, the overall lift might exceed the two-foot limit.
With regard to the 15 percent overbuild requirement, the Plans contemplated settlement greater in the middle than on the slopes. Ordinarily, the overbuild would have called for a steeper slope initially, until settlement effected a return to the one-to-three slope ratio. However, to comply with the 15 percent overbuild requirement for the un-compacted fill alternate, Hardwick extended the overbuild in the same thickness all the way to the toe of the levee thereby retaining the one-to-three slope. Hardwick chose to use extra dirt quantities, without compensation, rather than assume the risk that the Corps might determine that the levee was short of the specification requirements and— at great added cost to Hardwick — demand that it return with its equipment, obtain additional borrow sources and add to the height of the levee to obtain the Corps’s acceptance. Thus, it added more material to the levee than the specifications required to assure that the levee, when completed, would conform to the specifications. Although Mr. Whaley called the unnecessary overbuild to Hardwick’s attention, Hardwick did not modify the slope but left the overbuild as originally constructed. Based upon Whaley’s later computations, about 35,000 cubic yards of extra dirt were placed between stations 120 and 400.
Hardwick representatives had a meeting with the Corps shortly after Mr. Haberman arrived on the job. At this meeting, the Corps threatened to withhold progress payments. Although Hardwick had complained about the Corps’s inspectors’ nitpicking, the main discussion at the meeting was about the proper interpretation of the lift thickness requirement. At that meeting the Corps continued to urge adherence to its interpretation that the material after casting, but before manipulation, could not exceed two- *375 feet in thickness. Hardwick refused to agree with this interpretation, so the meeting did not resolve this conflict.
Mr. Whaley also told Hardwick representatives that, in his opinion, the Glasgow gauge readings could not be correlated to the job site. The basis for this opinion is not explained in the record. In any event, Mr. Whaley did not criticize Hardwick for not correlating these gauge readings to water levels at the Project based simply upon the general knowledge that the Missouri River’s elevation dropped about one foot per mile in the Missouri River down to the Glasgow gauge.
Mr. Whaley helped to set up four water level gauges in the lake. His report for May 26, 1978, showed that he instructed that the gauges be set so that they would register when water levels reached 618.5 MSL. The lake has the capacity to rise 0.3 inches in one day. Defendant’s gauges show that the lake level actually rose by this much on August 2, 1978, and June 28, 1979. Also, about these times during construction the water table west and south of Cut-Off Lake was at ground level.
The difficult relations between the parties were exacerbated by Mr. Palmateer’s letter of December 7, 1978, to Hardwick detailing plaintiffs unsatisfactory performance. Specifically, the letter stated that Hardwick had shown a “lack of initiative” in determining the cause of and remedy for the bank-full condition of Palmer Creek. At the time of this statement, the Corps’s files showed that Mr. Palmateer actually knew the real cause of this condition. On June 29, 1978, he had determined that a reading of 19 on the Glasgow gauge (lower than bank-full at the gauge) was, alone, sufficient to cause the back-flow of water over the sill at the lake.
Due to its experience during the 1977-78 construction season when flooding and backwater from the river caused high lake levels (thereby preventing Hardwick from realizing any benefit from seasonally expected lower lake levels), Hardwick determined that the lake had to be lowered. Hardwick sought immediate approval of the plan to lower the lake because of the relatively long time required to physically effect a drawdown of the lake’s level to the 618.5 MSL. That request was initially rejected by Mr. Palmateer by letter which revealed that other agencies (the Fish and Wildlife Service and Environmental Protection Agency) were necessarily involved in obtaining approval of Hardwick’s request to lower the lake.
The Corps had repeatedly threatened Hardwick with the issuance of an interim unsatisfactory report (“IUR”). Because such a report often precedes a notice of termination for default, contractors regard an IUR as a vexy serious criticism of performance. Although Hardwick was under the impression that it had done all that was needed to satisfy the Corps so that no IUR would be issued, the Corps issued the IUR on January 5,1979, in the form of a letter signed by Mr. Palmateer.
The normal flow in the Missouri River at Kansas City upriver from Palmer Creek is approximately 41,000 cubic feet per second (cfs). In 1978, during construction, the Corps determined that the flow at Kansas City was between 60,000 and 61,000 cfs. Therefore, in March, 1979, the Corps warned Hardwick that the flow would be 5,000 to 10,000 cfs greater than normal for the coming 1979 season.
The Contract required dewatering of the 400 and Main Stem concrete structures to a level of three feet below the lowest point of the structures which was the bottom of a vertical concrete flange extending across the front of the flat apron of the structures. This flange is designed to keep water from going underneath the concrete apron. However, the Plans contained no specific method for the dewatering of these structures. Therefore, Hardwick, under the Contract, had the discretion to dewater by using one or more sump pumps, a well-point system or a deep well pumping arrangement.
The levee intersected with the pipeline of Universal Pipeline Company south of the 400 structure. CH-2-M Hill (“Hill”) acted as a dewatering subcontractor for Universal Pipeline Co. It used a piezometer, having a two-inch plastic PVC pipe with slotted openings and a filter pack to obtain water level readings. Hill’s dewatering test wells for the *376 pipeline crossing showed an unusually high water level. Usually, a low water level is an advantage because it means a lower pumping rate, fewer wells, shorter periods of pumping, shallower wells, and, accordingly, a less expensive dewatering operation. However, the efficiency of a particular system depends upon many factors including speed. Hill, from its experience with dewatering for the pipeline, proposed that Hardwick use a deep well pump system to produce the necessary drawdown. 20
Before beginning its dewatering efforts at the 400 structure, in accordance with its Corps-approved plan, Hardwick constructed a ring levee around the structure to direct the lake’s water away from the work. Its first attempt to dewater by means of a sump pump was unsuccessful because about 10 percent of the total area in the bottom of the excavation remained soggy or spongy. Even after Hardwick replaced this wet material with dry dirt, the sump pump failed to adequately dewater this area. This failure of the sump pump indicated that the water table was at or near the bottom of the excavation. Because Hardwick wanted to complete the dewatering for the 400 structure as quickly as possible so that the concrete could be poured before cold weather came, Hard-wick concluded that it had no more time to experiment with a larger system consisting of simply more sump pumps. Therefore, on October 25, 1978, it had Layne Western, an experienced dewatering contractor, install one deep well system which succeeded in effectively dewatering the spongy area so that the concrete pour could proceed.
The dewatering of the Main Stem structure also presented problems. Hardwick put Jim Lewis, who lacked experience in dewa-tering, in charge of this installation. However, when Mr. Lewis attempted to get the Corps’s approval of a plan of operation for constructing the Main Stem structure, Mr. Whaley refused to approve any of his proposed plans because they involved using what he said was an inadequate dewatering system. Several discussions with Corps personnel about the number of deep wells needed to adequately dewater occurred. One such discussion took place on May 7, 1979, as shown by the Corps’s master diary. However, the diary entry contains no language indicating that the Corps was requiring a four-well system. In any event, a dewatering plan involving four wells, in a form satisfactory to Mr. Whaley, was ultimately submitted on October 4, 1979 and finally approved by the Corps. As a result of its difficulties and delays in dewatering the two structures, Hardwick significantly exceeded its cost estimates for dewatering work.
As discussed earlier, the Plans called for the use of riprap to meet a particular specification and listed five approved sources. Only after Hardwick commenced work upon the concrete structures — several months after winning the contract — did it actually contact suppliers in order to purchase riprap. At that time Hardwick discovered that the approved sources were unable to supply rip-rap meeting the specifications. Hardwick immediately sought approval from the Corps for alternate sources of materials. On May 23, 1980, Hardwick was advised of alternate approved sources. Later, the Corps provided Hardwick’s Jim Henke with a list of these alternate sources and patterns of substitute rock. The total period of time from Hard-wick’s request for approval of the alternate sources and the Corps’s approval was 35 days. Unfortunately, the new approved sources were located much farther away from the Project site. In fact, the source Hardwick finally chose, Central Stone Company of Huntington, Missouri, required a rather lengthy round-trip haul via truck. This caused Hardwick to incur additional, unanticipated trucking costs.
When the Corps learned that Hardwick planned to lower the lake 1¡¿ feet during the period from March 1 to August 1, 1978, it contacted other agencies who had wetlands jurisdiction under the Clean Water Act, including the Fish & Wildlife Service and the Environmental Protection Agency and the Missouri Department of Conservation. *377 Corps officials met on January 30,1978, with officials from several of these agencies and discussed various, related issues including the need for an Environmental Impact Statement, the risk of a significant fish kill, the time required for reestablishment of the lake level to 620 MSL and the need for replanting of grasses in the disturbed areas. By February 10, 1978, an agreement was reached among these agencies which allowed lowering of the lake commencing March 1, 1978, permitted Hardwick to construct a permanent or temporary structure by August 1, required that the lake be returned to 620 MSL by September 1, and required that grasses be reseeded in the disturbed areas.
In order to complete the levee Hardwick obtained operating funds by selling equipment. Thereafter, it completed all work and sought Corps approval. After a final inspection, the Corps accepted the work.
Hardwick did not immediately submit a claim to the Corps’s Contracting Officer requesting a final decision. Although the work had been completed, the Contract was not then closed, and no final resolution of the matter was reached by the parties. Before filing a formal claim with the Corps, Hard-wick sought to determine exactly what had happened to cause its perceived losses in performance of this Contract. Therefore, through its counsel at the time, Lawrence Lemer and Mike Barker, Hardwick made a broad request to the Corps on March 24, 1982, for an opportunity to review Corps files and data relating to the Contract.
Dennis Denker, an Engineering Technician who was with the Corps’s Claim Section in Kansas City, Missouri, received Hardwick’s counsel’s request. Mr. Denker knew very little about the requirements for properly responding to such a request. He was not sufficiently trained to be able to distinguish between such a request and any others. Therefore, on behalf of the Corps’s Claims Section, he treated the request as one similar to a Freedom of Information Act (“FOIA”) request and subject to the same privilege restrictions upon document production applicable under FOIA. Accordingly, Mr. Denker asked Mr. Palmateer to review all Glasgow office files and send any documents to the Claims Section in Kansas City, Missouri, if they were relevant, even if they might be exempt from production under FOIA. The Corps’s intent was to have the Corps’s Office of Counsel review these documents before they were produced to Hardwick. Thereafter, Mr. Palmateer, in response to Mr. Denker’s request, replied to Messrs. Lerner and Barker by stating that they would be shown all of the Corps’s files, which were being gathered for their review at the Corps’s Glasgow office. Based upon what Mr. Pal-mateer had said, Messrs. Lemer and Barker understood that the only documents that would not be produced would be those that were subject to a claim of privilege under applicable discovery rules, that the Corps knew that their request was not limited in any way and that FOIA restrictions were not applicable since this was an open contract.
Thereafter, Mr. Lerner made two visits to the Corps’s Glasgow office, one in late April 1982 and another on May 12 and 13, 1982. On the first visit in April, he was accompanied by Mr. Barker. Certain documents, later produced to plaintiff, were not among those documents made available to plaintiffs counsel at Glasgow. Based on his knowledge of the case, Mr. Lemer might have immediately seen their relevancy, if they had been produced. However, Mr. Lemer also knew that there were some documents that were not being produced by Mr. Palmateer. In fact, Mr. Palmateer told Mr. Lerner this. However, Mr. Lemer did not request these unproduced documents at that time because he thought they were few in number. Although he did not know what these documents were, he did not think they related to possible Plan errors. 21
*378 Mr. Denker immediately directed that the file folder, after he received it from Mr. Palmateer, be sent to the Corps’s Office of Counsel in Kansas City for review and approval of documents for production to plaintiff in response to plaintiffs counsel’s request. This particular file was never produced to Hardwick’s counsel either at Glasgow or later during formal discovery in this case. To date, it remains a complete mystery as to what happened to this folder.
In 1982, when plaintiffs request was received, Ed Elkins, a Corps attorney, was the designated FOIA officer at the Kansas City Corps office. Corps counsel were required to determine all exemptions from production under 5 U.S.C. § 552 . However, if relevant information was being withheld, the Corps’s standard procedure involved advising the contractor of this fact in writing. Such advice to a contractor would normally be in the Corps’s file along with standard transmittal forms, cover letters and responses documenting the Corps’s entire review process. If the document request related to a potential claim or actual claim, all information would have been retained in one “claim file” in the Office of Counsel. However, in fact, by 1984, there was only one file related to Hardwick remaining in the Office of Counsel. This file was not classified as a claim file since it only contained memos.
Mr. Palmateer kept records in accordance with applicable regulations, but he never disposed of any Coips records. He responded to plaintiffs counsel’s request for review of records, which he received about March 20, 1982, by sending the document request to Kansas City to Mr. Denker and advising Mr. Barker that the records would be available in Glasgow. Later, when Messrs. Barker and Lerner came to Glasgow as attorneys for Hardwick, he personally met with them. At the time of their first review, on April 27, 1982, he prepared a memo of the records they were given and the scope of their review. Thereafter, he conversed with James H. Dyer, Jr., an attorney, and Harry Moore, Chief of the Office of Counsel, also an attorney, regarding the copies of the documents he had sent to Kansas City. At trial he could recall nothing regarding the subject matter of these discussions. Mr. Palmateer did not personally review any of the files before making them available for examination at Glasgow. He interpreted Hardwick’s counsel’s request as limited to the field office files.
Based upon the information presented to them, plaintiffs counsel determined that plaintiff had a valid claim. Thereafter, plaintiff submitted its claim, as required under the Contract Disputes Act, to the Contracting Officer.
DISCUSSION
Reasonableness of Plaintiff s Bid
Plaintiff contends that its bid was reasonable in light of all the relevant factors, including its substantial experience in the levee construction business in the Missouri Valley. Hardwick further points out that, in formulating its bid, plaintiff relied on the Plans, available boring logs, and its investigation of the site itself. Thus, Hardwick argues that its bid was entirely reasonable and prudent.
Defendant contends, however, that Hard-wick, as an experienced contractor, should have expected that the site was likely to become excessively wet due to potential weather conditions and flooding. To the extent that Hardwick’s bid did not take these hazards into account. Defendant maintains that Hardwick’s bid was much too low to have been reasonable. Specifically, defendant argues that:
(1) plaintiff failed to properly consider that the work was in a floodplain; that there were three relatively large bodies of water, whose levels would obviously fluctuate significantly over time, in close proximity to the work;
(2) plaintiff relied unreasonably on boring logs that were more than a decade old and which did not represent conditions present at the time of bidding;
(3) even to the extent that plaintiff did rely on the boring logs, Hardwick apparently ignored the fact that some borings showed the water table to be within five feet of the surface;
*379 (4) that the Plans contained Missouri River hydrographs which actually showed significant fluctuations in water levels;
(5) that information relating to the slope of the Missouri River, the frequency of inundation and the areas of ponding and poor drainage was known by area residents; and
(6) that if plaintiff had exercised due diligence during and after its investigation and site visits, it could have obtained additional pertinent information from local residents, from experts in the field of hydrology and from indications in the Corps’s files and field notes.
Defendant argues that Hardwick’s equipment for performance of the Project was marginal. Mr. Fulkerson’s testimony was that plaintiffs equipment was a hodgepodge which needed repairs even when brought to the site. However, given the size of the job and the amounts of various types of construction equipment needed to perform the work, it is not surprising that some used equipment was purchased and, because brought from other jobs, initially needed repairs. These repairs were often completed at the job site as field repairs. Although there were breakdowns and failures, these were primarily caused, not by Hardwick’s neglect or negligence, but by the severity of weather conditions and the resultant wear and tear upon the equipment.
The evidence shows that plaintiff performed a site visit over a two-day period before bidding. However, during its site visits it elected not to take additional deep soil borings but, instead, used a hand held dynamite auger with a very limited capacity to obtain soil samples. Further, it used a stick to simply probe the soil in an unidentified number of locations to determine the extent of the soil’s compaction and sufficiency for scraper operations. Hardwick elected not to examine the field notes before bidding. Hardwick elected not to consult with a hydrologist or geotechnical engineer about potential wetness problems at the site before bidding. Its investigation of local conditions was too superficial to be considered adequate under the circumstances. Accordingly, the court agrees with defendant that these actions, particularly in view of the floodplain location of the job site and its proximity to three significant bodies of water, were not those of an experienced and prudent contractor and were insufficient under the circumstances.
Additionally, based on a careful comparison of the testimony of both plaintiffs and defendant’s witnesses relating to the adequacy of the Corps’s borings (testimony discussed in greater detail later in this opinion), the weight of the evidence is persuasive that the Corps’s borings, although not perfect, were sufficient to alert an experienced levee contractor to the likelihood of operational difficulties due to wet conditions. Therefore, the court further finds that Hardwick’s relance upon the Corps’s out-of-date borings, and its conclusion that those borings represented the conditions which plaintiff would face years later, was not reasonable and prudent. 22
Defendant also contends that Hardwick’s bid must be viewed as unreasonable when compared with the Corps’s own reasonable estimate. That estimate, which was also based upon the compacted fill method of construction, anticipated moving approximately one-third more earth (by draglines and dump trucks) than Hardwick’s bid contemplated because the Corps thought that the site would be too wet for normal scraper operations. The Corps’s estimate also anticipated using certain items of equipment that Hardwick did not consider to be needed, particularly in dewatering for the concrete structures. Further, the Corps’s bid con *380 templated using heavy scrapers (Euclid 657’s, for example) and, in certain borrow areas, draglines and dump trucks. Defendant’s expert testimony was convincing that such scrapers could have operated, albeit with some difficulty, in the areas contemplated based upon anticipated load factors, haul road usage, the sizes of the tires utilized by the equipment and the types and thicknesses of soils involved. Thus, the court finds that the Corps’s estimate was reasonable and that it indicates, when carefully compared with plaintiffs bid, that plaintiffs bid was beneath industry standards.
In sum, based upon a detailed review of plaintiffs actions and assumptions regarding the Plans and the job site, which included its undue reliance upon the Corps’s borings, its failure to review the field books or even request an opportunity to review them before bidding, its failure to take its own deep soil borings, its superficial and inadequate investigation of local conditions, its failure to anticipate and allow for the possibility of the occurrence of extremely severe weather conditions at the site and, in general, its misconstruction of the Plans, the court concludes that under all circumstances here present, plaintiffs bid was below industry standards and highly vulnerable to bad weather conditions. On balance, the court finds that based on the preponderance of evidence presented, Hardwick’s bid was unreasonably low and not that of a reasonably prudent contractor.
Defective Design and Contour Error Claims
Plaintiff contends that the design of the levee was inherently defective because of the particular alignment or location of the levee selected, its height, width, slope and other design parameters, including the designation of inadequate borrow sources. Defendant contends that the design of the levee was adequate in every respect and its location was entirely appropriate given the flood protection purposes assigned to the levee.
The evidence shows that the levee’s location represented a reasonable compromise among various competing interests. The alignment finally chosen was selected to best protect adjacent farmland from flood damage by channelizing Palmer Creek, which flowed into the lake, and by bordering the lake with the levee to help contain the lake at a reasonable cost to the government. An alternative centerline location further to the west, although offering construction advantages over the alignment that the Corps chose, would have abandoned to flooding and non-use potentially valuable farmland to the east of such an alignment. Also, such a location would have detracted from serving the basic purpose of the levee — the preservation and protection of valuable agricultural lands from flooding. There was sufficient borrow to construct the levee as designed although borrow sources to the west of the levee’s alignment may have been more accessible and drier than those identified in the Plans. Further, the 15 percent overbuild requirement was entirely standard for construction of a levee using the uneompacted fill alternate which Hardwick ultimately used. The 15 percent overbuild requirement, if adhered to exactly as designed by the Corps, would have been adequate for construction of the levee. (The degree of initial increase in slope from the overbuild is patently not so severe that permanent stability of the levee was in any way threatened.) Finally, the court’s own 1991 site visit revealed a well-constructed levee in excellent condition as of that time. Consequently, on the record presented, and for the reasons assigned by defendant, the court finds that the Corps’s design of the levee was not defective because of the levee’s location, height, slope, or other design parameters including the 15 percent overbuild requirement and designation of borrow sources.
Plaintiff contends that its evidence has shown the existence of material contour errors in the Plans — material because the contours did not comply with accuracy standards which, under the circumstances, it says the court should apply. Plaintiff argues that it reasonably relied upon the accuracy of these erroneous contours on the Plans in bidding this job. Thus, it argues that because the wetness and extent of inundation of the job site were much greater than it reasonably expected from its reliance upon the contours, it incurred significantly increased operational *381 costs for which defendant is liable. Specifically, plaintiff contends that there were material contour errors, that defendant violated professional standards by not conforming the two types o;f available elevation data — the more exact survey established elevations with the less accurate topographically derived contours — to the more accurate data in order to correct these errors. Further, plaintiff contends that the standard of accuracy to be applied when there are spot or survey elevations in the same areas, the standard identified by Mr. Bradfield, is one-fifth of a contour interval (a two foot interval in the Plans), and not one-half a contour inter-, val as set forth in the National Map Accuracy Standards (NMAS). (Thus, plaintiff contends that when there is error in the plan contours, that error should be consistent with the error in elevation which, in general, should not exceed one-fifth of a contour interval.) Further, as proof of the existence of contour errors, plaintiff also points to the plotter’s placing of a question mark on the manuscript map, his misuse of the lake surface as a control point and defendant’s arbitrary adjustments in correcting the level circuits for the mapping of the area. 23
Plaintiff also maintains that defendant knew that the contours were in error and failed to disclose this fact to plaintiff. It contends that this failure to disclose was both unethical and professionally improper because defendant knowingly hid evidence of a changed condition. Consequently, it contends that the Corps violated its first duty after its investigation and verification of the existence of a changed condition, which is to disclose the results of its investigation promptly.
Defendant vigorously disputes all of these contentions. First, it charges that plaintiff has not demonstrated the existence of any contour errors in the Plans based upon an identified applicable standard. It argues that neither party has fully tested any of the maps or the contours on the Plans to accurately determine whether they do or do not comply, for example, with any set standard including the NMAS. Defendant states that the only testing plaintiff’s experts performed was to review certain points, most of which were along the centerline of the levee, and compare the elevations depicted on the maps with the surveyed elevations to show noncompliance with the one-fifth of a contour standard which plaintiff seeks to have the court apply. Moreover, defendant contends that some of the particular areas where plaintiff identified contour “errors” on this basis, were not critical areas such as those west of the lake. Further, the number of spot elevations plaintiff identified were veiy small in number (normal for such plans). Additionally, defendant points out that a contour crossing over a levee centerline may be off laterally by 40 or 50 feet from the compared survey point due to the scale (one inch equals 400 feet) of the maps. Also, if the contour crosses at an angle to the centerline and two stations are given, the potential for inaccuracy in making a comparison is even greater. Thus, defendant states, assuming that there were errors in the contours, they were not material, the conformance plaintiff has described is not practical, and the court should not hold defendant to any rigid standard of accuracy such as that urged by plaintiff. Defendant alleges that application of plaintiff’s standard is particularly unjustified *382 with respect to levee plans where such exactness in elevations is not necessary or reasonably to be expected by experienced contractors. Even if errors in contours exist, says defendant, they are minor and would not have affected the overall validity of the Plans.
Defendant further contends that it did not represent compliance with the NMAS or any other accuracy standard. Thus, it argues that it is immaterial whether the contours on the Plans actually meet the NMAS. Additionally, defendant points out that the Plans included a pertinent disclaimer respecting the accuracy of the contours which stated that they were “approximate only.”
Defendant argues that the one-fifth of a contour standard urged by plaintiff, as enunciated by Mr. Bradfield, is not cited in any governmental manual, professional reference work, treatise, textbook, or otherwise supported in the literature, as an acceptable standard for judging the accuracy of contours. Defendant maintains that, as a matter of practice, neither the Corps nor any other owner has ever applied plaintiffs claimed standard, the one-fifth of a contour level of accuracy standard, simply because there is data available from two sources. It contends that the standard sought to be applied by plaintiff is only Mr. Bradfield’s personal standard which has no independent support. Thus, says defendant, it would be entirely unreasonable for this court to adopt and here impose such a strict accuracy standard, particularly for a floodplain. Moreover, it argues that to impose Mr. Bradfield’s standard would necessarily ignore the described specific limitation or warning in the Plans that the elevations were “approximate only.” Further, defendant responds that the question mark on the manuscript map merely indicates that the plotter may have had some question in that area possibly due to glare or timber which falls far short of proof of contour errors. Also, defendant maintains that the Corps’s use of the lake surface as a control point, a common Corps practice, was not error simply because of possible small differences in lake elevations from one point on the lake to another. Defendant explains that the corrections made in the level circuit were not reflective of any material error which carried over to the contours on the Plans.
Finally, defendant argues that even if it is assumed that there were material contour errors on the Plans, and that for some reason the described disclaimer may not be given any effect and that the proper standard for accuracy is that urged by plaintiff, plaintiff still may not recover because it has failed to prove that it relied upon the contours in submitting its bid. Defendant says that adequate proof of such reliance is a prerequisite to any recovery.
Contour accuracy is affected by many factors including the height of the airplane, the skill of the pilot, wind conditions when the aerial photographs are taken, the scale used, the accuracy of the vertical and horizontal controls, the type of plotter used and the skill of the plotter in drawing the contour lines. Clearly, the whole technique of developing contour lines from aerial photographs is, at best, imprecise, has well known accuracy limitations, and is still evolving.
The contour data placed on Missouri River levee plans generally is there only to give the contractor an idea as to ground surface elevations, particularly since such elevations can change over time due to erosion or deposition of materials. Also, the obliteration of contours on the Plans was not unusual for levee projects along the Missouri River, where a lot of information must be crowded into a small space on the plans and more important information must be included on the plans. Further, neither the Corps nor private owners normally attach a copy of a manuscript map to a set of plans. In any event, the Corps did make a superficial comparison of the centerline profile data with the survey elevations. Although it found variations, because of the differences in scale, the Corps did not regard the variations as sufficient to warrant any major investigation into potential errors given the limited purpose of the contours being there in the first place.
Further, the Corps viewed the degree of variance between the two forms of elevation data as permitting a greater variance than one-fifth of a contour interval without there being an error in the Plans because (1) it *383 knew of no published requirement in any engineering manual or similar treatise that contour lines must be accurate to such a degree, (2) the fact that no other government agency or private firm requires such accuracy either and (3) the one-fifth of a contour standard, which Hardwick urges, would require a field survey of the entire area to a three- or four-inch level of accuracy. This level of accuracy would be totally unrealistic, if not impossible, with a site consisting of soft farmland having plowed furrows varying six inches in height, clumps of grass, rivulets and small barriers that can easily change by that much from season to season. In fact, it is obvious that the entire area would have to be graded by a road grader to approach that level of elevation accuracy. Such a requirement cannot be economically justified for a levee construction site.
The court is satisfied that the aerial photos were satisfactory since surveyed points with exact elevations and coordinates were scattered throughout the area, a check against the contractor flying the job before the photos were taken, and that Frank Georgie, the Corps’s cartographer who did the plotting for the manuscript map, used standard equipment (a Kelch plotter) and procedures (the slotted template method) within acceptable levels of skill to develop the contours for the manuscript map. The evidence shows that Mr. Georgie, for purposes of trial, checked the original photos for Palmer Creek using the older equipment, and that he found no errors in his notes or any of his work. Although Mr. Georgie first testified that the points fixed by the U.S. Geological Survey (USGS) were more accurate that those fixed by the U.S. Coast and Geodetic Survey (USCGS), he later corrected this testimony stating that the latter’s work is more accurate. Mr. Georgie raised the level circuit elevations because of the difference between the two elevations shown by these two agencies, in order to correct for the difference in the accuracy of the two sources, by .46 inches. The bench mark control point used by both agencies was the same, an old Missouri River Commission monument, but the USGS and the USCGS elevations were slightly different because one used the cap of the monument and the other used the top of the pipe itself. In fact, the court is convinced that the method used by the Corps for plotting the contours, or their replotting, using the aerial photographs was done in conformity with proper techniques and procedures. The Corps’s witnesses satisfactorily explained the results of wave action, the presence of trees or vegetation around the lake and other factors which can affect the accuracy of the photos and the contours derived from the photos. The defendant’s witnesses also satisfactorily explained the Corps’s survey notes with respect to the corrections made in the level circuit reflecting variances between USGS data and USCGS data. Accordingly, the court finds that no errors, but only variances within reasonable limits, resulted from these techniques and procedures.
Normally, if the owner intends compliance with the NMAS, there is a notation on the documents to that effect. However, the Plans contained no representation of compliance with the NMAS. In fact, the Plans contained no representation of compliance with any accuracy standard. Had the Plans contained a representation of compliance with the NMAS, the contours would have been in compliance if they were within one foot of being absolutely accurate.
The United States NMAS, Revised June 17, 1947, Bureau of the Budget, reads, in part, as follows:
2. Vertical accuracy, as applied to contour maps on all publication scales, shall be such that not more than 10 percent of the elevations tested shall be in error more than one-half the contour interval. In cheeking elevations taken from the map, the apparent vertical error may be decreased by assuming a horizontal displacement within the permissible horizontal error for a map

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6646065. Public record. Not legal advice.