Findings of Fact 149 C. Cls. for the project, in strict performance with the specifications and drawings. It also provided: 5. Bidders should carefully examine the drawings and specifications, visit the site of the work, and fully inform themselves as to all conditions, and matters which can in any way affect the work or the cost thereof. Should a bidder find discrepancies in, or omissions from, the drawings, specifications or other documents, or should he be in doubt as to their meaning, he should at once notify the contracting officer and obtain clarification prior to submitting any bid. 3. Plaintiff decided to submit a bid and in the interval of time between the receipt by it of the invitation and the time for the submission of its bid, a representative of the plaintiff inspected the site of the work, which was approximately 175 miles from its office in Baltimore. Plaintiff also familiarized itself with the specifications and drawings, computed the quantities of work and materials involved, obtained materials prices and various subcontractors' quotations, and investigated the local labor situation. 4. Plaintiff prepared and duly filed a bid, which was accepted, and on September 27, 1951, it entered into a contract with defendant, acting by a contracting officer of the Department of the Army, to construct the project for the lump sum price of $52,204, in strict accordance with the specifications and drawings, which were made a part of the contract. 5. (a) The contract provided in part as follows: 4. Changed Conditions. Should the contractor, encounter or the Government discover, during the progress of the work subsurface and/or latent physical conditions at the site materially differing from those shown on the drawings or indicated in the specifications, or unknown physical conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the drawings and specifications, the contracting officer shall be notified promptly in writing of such conditions before they are disturbed. The contracting officer shall thereupon promptly investigate the conditions, and if he finds that they do so materially differ the contract shall be modified to provide for any increase or decrease of cost and/or difference in time re 671 Findings of Fact sulting from such conditions. If the parties fail to agree upon the adjustment to be made, the dispute shall be determined as provided in Clause 6 hereof. 6. Disputes. Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the contracting officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the contractor. Within 30 days from the date of receipt of such copy, the contractor may appeal by mailing or otherwise furnishing to the contracting officer a written appeal addressed to the Secretary, and the decision of the Secretary or his duly authorized representative for the hearing of such appeals shall be final and conclusive; provided that, if no such appeal is taken, the decision of the contracting officer shall be final and conclusive. In connection with any appeal proceeding under this clause, the contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the contractor shall proceed diligently with the performance of the contract and in accordance with the contracting officer's decision. 27. Definitions.-As used throughout this contract, the following terms shall have the meaning set forth below: (b) The term "contracting officer" means the person executing this contract on behalf of the Government and any other officer or civilian employee who is properly designated contracting officer; and the term includes, except as otherwise provided in this contract, the authorized representative of a contracting officer acting within the limits of his authority. (b) The specifications provided in part as follows: SECTION III EXCAVATION AND GRADING 3-1 EXCAVATION: (a) Do all excavation as shown on plans or as required by the complete "work". Care must be taken not to excavate below proper level for placement of any footings. No backfilling under footings will be permitted. The Findings of Fact 149 O. Cls. bottoms of all trenches to receive footings must be level regardless of character of excavated material. When excavation is carried below proper levels, additional concrete must be added to the bottom of the footing to bring the top of the footings as shown to the proper level as shown on drawings. Top soil shall be carefully removed and stacked and shall be spread at completion of project at points indicated. (b) Type of material to be excavated in all cases such as can be moved by normal job labor and equipment, power shovels, without resorting to blasting. SECTION XV CONSTRUCTION METHODS 15-1 EXCAVATION: The Contractor shall accept the premises as he finds them and shall excavate and prepare the area as necessary for the execution of the work in accordance with the drawings and specifications. Bidders are expected to visit the site of work and after investigation to decide for themselves the character of the materials to be encountered. The Government does not guarantee the nature of the proportions of the various materials to be encountered and it shall be the bidders' responsibility to determine the extent and character of the materials to be encountered. This contract shall include all excavation, clearing and grading for structures and paving as shown on plans to effect the necessary lines and grades in conformity with plans and as required due to existing conditions. Unsuitable materials removed shall be disposed of by the contractor. Suitable materials removed in establishing a grade may be used as back fill. Boulders encountered, too large to be used or not required, shall be taken up and removed from the site. 6. Plaintiff's contract was one of several let during the period from 1949 to 1954 to different contractors for the development of a site at Oakland, Maryland, for the Maryland National Guard. Initially a motor vehicle storage building was built. It was followed by the construction of a road, and later by the construction of a boilerhouse addition to the motor vehicle storage building. Thereafter came plaintiff's contract for the construction of garages, a park 671 Findings of Fact ing area, and a fence enclosing the entire area. Finally, a so-called headhouse addition, consisting mainly of offices and locker rooms, was constructed as an attachment to the main Armory building. However, none of the buildings, nor the road, constructed by the other contractors, went to the depth of excavation equal to that required of the plaintiff in the performance of the contract herein involved. The overall project site was approximately 620 by 320 feet. Plaintiff worked on a rectangle of approximately 180 by 140 feet in the northwestern portion of the site. Along the western side of the rectangle, plaintiff was to build 4 garages in a space 30 by 180 feet, and the balance of the area was to be made into a parking lot. 7. As stated in finding 3, prior to the submission of plaintiff's bid, one of its officers made a site investigation. Among other things, he made inquiries of local people. As a result of his investigation, he ascertained that the general area around Oakland is rocky country. Furthermore, there was visual evidence of rocky strata in the road cuts leading to the project site itself. Plaintiff made no subsurface investigations to determine the existence of rock in the specific area in which it would be working. Normally, when plaintiff bids on a contract which requires excavation of all materials at the contract price, regardless of type (sometimes referred to as an "unclassified" contract), plaintiff makes a careful subsurface investigation. However, as it interpreted section 3-1 (b) of the specifications of the instant contract, it would, under the lump sum contract price, only be required to perform normal excavation which in its opinion would not include rock. Plaintiff considered this section, therefore, as constituting, or being equivalent to, a so-called "rock clause,” i.e., one providing extra compensation for excavating rock, and that, if in fact it did encounter rock which would require removal by other than normal excavating methods, additional payment would be made therefor. Accordingly, even assuming the limited period between the issuance of the invitation for bids and the time for the submission of bids would permit a careful subsurface investigation, plaintiff felt that in this instance it was unnecessary. In light of the information it did obtain concerning the gen Findings of Fact 149 C. Cls. eral rocky nature of the Oakland area, the visual evidence of rocky strata near the project site itself, and its interpretation of the specifications, the encountering of rock in its excavation operations was not unexpected by plaintiff. While plaintiff felt that it was possible that it would encounter rock, it nevertheless also felt there was no certainty that it would, since, without elaborate subsurface explorations, it is not possible to know exactly what kind of materials will be encountered in a specific location until the excavation operation is actually performed. 8. On April 3, 1952, plaintiff began stripping the topsoil at the project site in preparation for its excavation operations, which commenced on or about April 15, 1952. In early May 1952, it was excavating the footings for one of the garages on the north end of the site. Part of the excavation consisted of soft earth. However, as the excavation proceeded deeper, a type of laminated, rotten or deteriorated rock of a shale type was encountered. The layers were thin, consisted of small portions of deteriorated rock, and were mixed with dirt. This mixture of deteriorated rock and dirt was removed by the same method as the soft earth overburden, i.e., by pick and shovel. However, the deeper the footings were dug, the more consolidated and the harder the rock became, until it consisted of a degree of consolidation and hardness which made it impossible to remove by pick and shovel, or by powered machines such as power shovels or backhoes (which is also a powered piece of equipment, like a power shovel, but which has a bucket attached to the boom and operates in reverse so that the bucket moves toward the equipment instead of away from it, as does a power shovel). This hard rock was also laminated, but the laminations were thicker and tightly consolidated. The rock laminations were in a 30°-40° angle position. They were found in various specific locations at the bottom of the footing, and not continuously throughout the entire bottom. When this hard, consolidated rock was encountered, plaintiff had performed the great bulk of the excavation in the footing necessary to reach the required grade, and in some parts of the footing had reached the required grade without encountering such rock. |