B-166157, JUL. 29, 1970

B-166157, JUL. 29, 1970

CONTRACTS -- DISPUTES REAFFIRMATION OF DECISION OF APRIL 11, 1969, DENYING CLAIM OF SOUTHWEST ENGINEERING COMPANY, INC., FOR ADDITIONAL WORK UNDER CONSTRUCTION CONTRACT WITH AIR FORCE AND SUSTAINING DECISION OF ARMED SERVICES BOARD OF CONTRACT APPEALS. THE FACTUAL DETERMINATION BY ASBCA THAT SUBSURFACE WATER WHICH CAUSED ADDITIONAL WORK FOR PAVING CONTRACTOR WAS RESULT OF RAINS AFTER PERFORMANCE HAD COMMENCED AND THEREFORE A PRE-EXISTING CONDITION RATHER THAN A CHANGED CONDITION MUST, WHEN BASED ON SUBSTANTIAL EVIDENCE AND NOT ARBITRARY OR CAPRICIOUS, BE ACCORDED FINALITY.

TO SOUTHWEST ENGINEERING COMPANY, INC.:

THIS IS IN REPLY TO YOUR LETTERS OF JULY 29, 1969, MAY 19, 1970, AND JUNE 12, 1970, REQUESTING THAT WE RECONSIDER OUR DECISION B-166157 DATED APRIL 11, 1969, WHEREIN WE SUSTAINED THE DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA), NO. 13223, IN DENYING YOUR CLAIM UNDER AIR FORCE CONTRACT NO. F23606-67-C-0118.

BASICALLY, IT IS YOUR POSITION THAT OUR DECISION FAILED TO COMPLETELY ANALYZE THE FACTS PRESENTED AND THAT IT MERELY CORROBORATED THE DECISION OF THE ASBCA RATHER THAN HAVING REACHED AN INDEPENDENT DETERMINATION AS TO WHETHER THE SUBSURFACE WATER, WHICH CAUSED ADDITIONAL WORK AND EXPENSE UNDER THE SUBJECT CONTRACT, WAS A CHANGED CONDITION WITHIN THE MEANING OF THE STANDARD GOVERNMENT CONTRACT CHANGED CONDITIONS CLAUSE.

YOU ARGUE THAT THE RECORD SHOWS, AND WE FAILED TO APPRECIATE, THAT THE WET OR MUCKY SUBSURFACE ANTEDATED THE ABNORMAL RAINFALL, AND THAT THIS CONDITION WAS KNOWN BY THE GOVERNMENT. YOU SUBMIT THAT WE SHOULD GIVE EFFECT TO THE STATEMENT OF THE COURT IN THE CASE OF UNITED CONTRACTORS V UNITED STATES, 368 F. 2D 585, 177 CT. CL. 151 (1966), WHEREIN IT WAS OBSERVED THAT "THE VERY PURPOSE OF ARTICLE 4 IS TO PREVENT BIDDERS FROM ADDING HIGH CONTINGENCY FACTORS TO PROTECT THEMSELVES AGAINST UNUSUAL CONDITIONS DISCOVERED WHILE EXCAVATING, FOR OBVIOUSLY NO ONE CAN EVER KNOW WITH CERTAINTY WHAT WILL BE FOUND DURING SUBSURFACE OPERATIONS. THE ARTICLE IS THUS EXPRESSLY DESIGNED TO TAKE AT LEAST SOME OF THE GAMBLE OUT OF SUBSURFACE OPERATIONS. *** ITS OBJECT IS TO PERSUADE CONTRACTORS TO CALCULATE BIDS ON THE BASIS OF THE DESCRIPTION CONTAINED IN THE SPECIFICATIONS, PLANS, AND DRAWINGS (INCLUDING THE BORINGS)." MOREOVER, YOU ARGUE THAT THE SPECIFICATIONS IMPLIED THAT SATISFACTORY COMPACTION COULD BE ATTAINED WITH ONLY A TEN TON ROLLER AND YOU CITE ROBERTSON ELECTRIC COMPANY, INC. V UNITED STATES, 176 CT. CL. 1287 (1966), J. L. SIMMONS COMPANY, INC. V UNITED STATES, 412 F. 2D 1360, 188 CT. CL. 684 (1969), AND OTHER CASES FOR THE RULE THAT WHERE THE GOVERNMENT SPECIFIES A METHOD OF PERFORMANCE AND IT BECOMES NECESSARY TO REVISE THE PRESCRIBED METHOD OF PERFORMANCE, THE CONTRACTOR IS ENTITLED TO REIMBURSEMENT FOR HIS ADDITIONAL COSTS.

THE CASES CITED IN YOUR CORRESPONDENCE ARE, WE BELIEVE, DISTINGUISHABLE, SINCE IN THE PRESENT SITUATION THERE IS INVOLVED A QUESTION OF THE EFFECT OF ADVERSE WEATHER CONDITIONS AND IT IS WELL ESTABLISHED THAT CONDITIONS RESULTING FROM SEVERE WEATHER ORDINARILY DO NOT CONSTITUTE CHANGED CONDITIONS WITHIN THE MEANING OF THE STANDARD GOVERNMENT CONTRACT CLAUSE, AS THE GOVERNMENT DOES NOT ASSUME LIABILITY FOR DAMAGES RESULTING FROM ACTS OF GOD. SEE UNITED STATES V BROOKS CALL AWAY COMPANY, 318 U.S. 120; NORFOLK DREDGING COMPANY V UNITED STATES, 360 F. 2D 619; ARUNDEL CORPORATION UNITED STATES, 103 CT. CL. 688, CERT. DEN. 326 U.S. 752 (1945); ARUNDEL CORPORATION V UNITED STATES, 96 CT. CL. 77 (1942); BREYMANN V UNITED STATES, 106 CT. CL. 367 (1946); WARREN BROTHERS ROADS COMPANY V UNITED STATES, 123 CT. CL. 48, 105 F. SUPP. 826 (1952); SECTIONS 29.80 AND 29.90, VOL. 4, WACHTEL AND MCBRIDE, GOVERNMENT CONTRACTS. ADDITION WE FIND NO LANGUAGE IN THE SPECIFICATION IMPLYING OR GUARANTEEING THAT A SPECIFIC METHOD OF PERFORMANCE, (I.E., A TEN TON ROLLER) WOULD BE ADEQUATE. TO THE CONTRARY, THE CONTRACT ACTUALLY PROVIDED FOR COMPACTION OF THE SUBGRADE WITH AN APPROVED ROLLER WEIGHING NOT LESS THAN TEN TONS.

WE RECOGNIZED IN OUR DECISION OF APRIL 11, 1969, THAT THERE WAS EVIDENCE BEFORE THE ASBCA INDICATING THAT A WET SUBSURFACE EXISTED PRIOR TO THE HEAVY RAINFALL. HOWEVER, WE FELT, AND WE SEE NO CONVINCING REASON FOR CHANGING OUR OPINION, THAT THE EVIDENCE DOES NOT ESTABLISH THAT THE REQUIRED WORK COULD NOT HAVE BEEN SUCCESSFULLY ACCOMPLISHED HAD SUCH RAINS NOT OCCURRED. ACCORDINGLY, WE HELD THAT A REASONABLE MIND COULD ACCEPT THE STATEMENT OF THE GOVERNMENT'S EXPERT, AS DID THE BOARD IN ITS FACTUAL DETERMINATIONS THAT EXCESSIVE SOAKING, TO A DEGREE WHICH PRECLUDED SATISFACTORY PERFORMANCE, RESULTED FROM FREQUENT RAINS OCCURRING AFTER PERFORMANCE HAD COMMENCED, BUT THAT A SATISFACTORY JOB COULD HAVE BEEN OBTAINED AS ANTICIPATED PRIOR TO SUCH RAINS. AS NOTED IN OUR DECISION SUCH A DETERMINATION OF FACT -- BASED ON SUBSTANTIAL EVIDENCE AND THEREFORE NOT ARBITRARY OR CAPRICIOUS -- IS BY LAW FINAL AND CONCLUSIVE UPON THIS OFFICE, AND WE ARE WITHOUT AUTHORITY TO DETERMINE OTHERWISE ON OUR OWN INITIATIVE EVEN IF IT WERE POSSIBLE TO REACH A DIFFERENT DETERMINATION. AS STATED IN OUR DECISION WE FOUND NO BASIS FOR DISAGREEING WITH THE BOARD'S LEGAL CONCLUSION THAT THE GOVERNMENT WAS UNDER NO DUTY TO FURNISH INFORMATION CONCERNING SOIL CONDITIONS, SINCE IT WAS NOT ESTABLISHED THAT THE GOVERNMENT HAD ANY SPECIAL INFORMATION WHICH WAS IN EXCESS OF OR DIFFERENT FROM WHAT WAS GENERALLY KNOWN IN THE AREA AND COULD HAVE BEEN READILY ASCERTAINED BY INQUIRY. WHILE YOUR LATEST CORRESPONDENCE ADVISES THAT THE GOVERNMENT CONTINUES TO AWARD CONTRACTS IN THE AREA WITHOUT ADVISING BIDDERS OF THE SUBSURFACE CONDITIONS, SUCH TESTIMONY WAS NOT BEFORE THE BOARD IN YOUR APPEAL AND, ACCORDINGLY, MAY NOT BE CONSIDERED BY THIS OFFICE.

WHILE THE RECORD SHOWS SUBSURFACE WATER WAS A PRE-EXISTING CONDITION, FOR THE REASONS STATED ABOVE WE ARE REQUIRED TO CONCLUDE THAT IT WAS NOT ITSELF A CHANGED CONDITION. IN VIEW THEREOF, AND SINCE THE FACT THAT SEVERE WEATHER INCREASED THE PROBLEM DOES NOT ENTITLE YOU TO RECOVERY UNDER THE "CHANGED CONDITIONS" CLAUSE, WE MUST AFFIRM OUR PRIOR DECISION AND THE ADMINISTRATIVE DENIAL OF YOUR CLAIM.