GRANTED IN PART:  June 21, 1993
                                                       
                                                       
 
 
                              GSBCA 11796
 
 
                     BECKMAN CONSTRUCTION COMPANY,
 
                                           Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                           Respondent.
 
        James F. Beckman, President of Beckman Construction Company,
   Fort Worth, TX, appearing for Appellant.
 
        Robert C. Smith, Office of General Counsel, General Services
   Administration, Washington, DC, counsel for Respondent.
 
   Before Board Judges LaBELLA, NEILL, and HYATT.
 
   LaBELLA, Board Judge.
 
        Beckman  Construction  Company  (Beckman  or  appellant)  is
   appealing the  decision of  the  General Services  Administration
   (GSA  or respondent) contracting  officer which denied  its claim
   for  an  equitable  adjustment  for  additional  dewatering  work
   required when it  encountered "quicksand" in the  excavation work
   it was  doing incident  to constructing a  tunnel and  digging an
   elevator  pit at  the  Federal Building  in  Newark, New  Jersey.
   Beckman  claims that the Government had superior knowledge of the
   subsurface  conditions which Beckman would encounter, but that it
   failed to disclose this information.  In the alternative, Beckman
   alleges that the "quicksand" encountered  amounted to a type  two
   differing  site   condition.     Respondent   alleges  that   the
   information  in  question  was of  no  value  in  determining the
   subsurface conditions  Beckman might encounter.   Respondent also
   argues that Beckman  was put on notice of  potential ground water
   problems  by the  specifications and  drawings  of the  contract,
   thereby  shifting  the  duty  to  appellant  to  request  further
   information.  We grant this appeal in part because the respondent
   possessed  material superior knowledge that it failed to disclose
   to appellant prior to bid submission. 
 
                                                                   2
 
                            Findings of Fact
 
        Contract  GS02P90CUC0021 was awarded  to Beckman on  May 24,
   1990.  Appeal File, Exhibit 1.  Under the contract Beckman was to
   construct a tunnel which would  connect the old Federal  Building
   with a tunnel,  then under construction, which would  lead to the
   new Martin  Luther King Federal  Building across the street.   In
   addi- tion, Beckman was to modify two elevators to allow them one
   additional stop below  the then current bottom level.   This work
   required excavation and  reconstruction of the elevator  pit, the
   deepest  portion of which would now be  located 29 feet below the
   elevation of the sidewalk.  Transcript at 13.
 
        Construction on  the Martin  Luther King  building began  in
   1987.  Prior to that construction, the respondent commissioned  a
   soils and  foundation report on  the building site.   This report
   was completed in February of 1987.   Appellant's Exhibit 1.  This
   report  shows  ground water  at the  observation well  closest to
   appellant's  work site,  B-15,  at eighteen  feet nine  inches on
   January 27, 1987, and twenty-two feet zero inches on February 23,
   1987.  Id.; Transcript  at 36, 37.  The three  borings closest to
   the work site  were numbers 5, 6,  and 7.  Transcript at  33.  At
   boring 5 no water level is recorded, at boring 6 the ground water
   level is eighteen feet three  inches, and at boring 7 the  ground
   water level is eighteen feet zero inches.  Appellant's Exhibit 1.
   Boring 5 shows the nature  of the soil in  the area to be  "brown
   fine to course sand, trace  silt, trace gravel (medium dense)" in
   the eight to  sixteen foot depth, "grading to  medium sand, trace
   silt @  16'-6","  and "Red-brown  fine  sand, some  silt  (medium
   dense)"  at a  depth  of twenty-five  feet.    Id. at  Boring  5.
   Borings  6 and  7  show  similar soil  characteristics.   Id.  at
   Borings 6 and 7.
 
        Despite  respondent's solicitation  of  the instant  project
   which required  the contractor to  excavate an elevator pit  to a
   depth of twenty-nine  feet, respondent did  not include the  soil
   borings  for the  Martin  Luther King  building project  with the
   solicitation,  nor did it affirmatively notify bidders that these
   borings existed.   One  bidder did  ask for  the borings  and was
   allowed to see  them.  Its bid, moreover, was over half a million
   dollars more than Beckman's low  bid for the project.  Transcript
   at  76-77.  The  contracting officer does  not know of  any other
   bidder which  requested the  boring  logs.   Id.   In  fact,  the
   contracting  officer did  not even  know the  logs existed  until
   after the contract was awarded. Id. at 74.  
         
        Mr. Beckman, appellant's  president, testified  that in  his
   experience  encountering  fine  sand mixed  with  water  is rare.
   Transcript at  28.  The  contracting officer testified  that this
   was only  the second instance in ten years  in which he was aware
   of  these  conditions at  an  excavation  site.   Id.  at  80-81.
   However, the GSA project manager for this contract testified that
 
                                                                   3
 
   sand and  water mixed  is not  an unusual  soil condition  in the
   coastal New Jersey area where Newark is located.  Id. at 85.  Mr.
   Beckman admitted that he had no knowledge of normal conditions in
   the area in  which this contract was  performed.  Id. at 21.   No
   witnesses were offered  as experts on the soil  conditions in the
   area,  and   we  find  the   testimony  in  this  regard   to  be
   unpersuasive.   Appellant  presented no  evidence  to refute  the
   testimony  of  the GSA  project  manager  and  we are  unable  to
   conclude what conditions are normal for the construction site.  
 
        Mr. Beckman also testified that  had he seen the boring logs
   prior to  the time  his company  bid the  contract he  would have
   included the additional cost of a dewatering subcontractor in his
   bid  because the boring  logs indicate a  condition that requires
   wellpointing, a process of dewatering an excavation site that his
   company is not equipped to perform.  Transcript at 10, 28, 35.  A
   wellpoint is a  hollow rod with a perforated intake  at the lower
   end which is driven  into the ground and connected to  a pump for
   the removal of water.  A wellpoint system consists of a number of
   wellpoints which are connected to a header which is attached to a
   pump, and is used to lower the water table at an excavation site.
   Cyril M. Harris, Dictionary of Architecture and Construction, 540
   (1975).
     
        Prior  to resorting to wellpoints, Beckman attempted several
   less expensive  means of dewatering.   As a  result of the  sandy
   soil  mixed with water, Beckman's attempts at traditional methods
   of  dewatering the  excavation  site  failed.    Its  submersible
   electric  pump clogged with silty sand and burned out, Transcript
   at 47, and attempts to drive steel sheeting into the perimeter to
   shore up the sides of  the excavation failed.  Id. at  50.  While
   Beckman  attempted  to  convince  the  Board  that  these  failed
   attempts were encouraged  by GSA's project  manager, it is  clear
   from  the testimony  that  the  project  manager  only  discussed
   possible  solutions  and  did  not  dictate,  or  rule  out,  any
   particular methods of proceeding  with the dewatering operations.
   Id.  at 92-94.   Beckman  is solely  responsible for  the methods
   chosen.
 
        Appellant incurred a total expense of $10,014.98 from August
   23  to August  29  for  dewatering work  in  connection with  the
   tunnel,   and  $80,919.52  from  October 10  to  December 29  for
   dewatering  work  on  the elevator  pit.    Amended  Claim, dated
   January 15, 1993,  Tabs for  direct and indirect  costs.  Of  the
   elevator  pit costs,  $50,548.13  were  expended on  wellpointing
   alone.    Id.     These  cost  figures are  not  disputed  by the
   respondent, which argues  only that appellant is not  entitled to
   any compensation for the excess costs incurred.  
 
        Beckman hit  water in the  tunnel portion of the  project on
   August 23, and tried conventional methods of water removal  until
   August  29 when it notified the  respondent it had a problem with
 
                                                                   4
 
   the ground water mixed with sand.   Appeal File, Exhibit 8.   The
   respondent   took  the  position  that  the  "quicksand"  was  an
   existing,  rather than  differing, site  condition  for which  no
   change order or equitable adjustment was necessary, but agreed to
   raise  the tunnel  floor in  order to  avoid the problems  of the
   "quicksand."   Id.,  Exhibit 9;  Transcript  at 90-92.   The  new
   design circumvented the  subsurface problems.  Excavation  to the
   raised  level  was   then  accomplished  without  the   need  for
   wellpoints.  Transcript at 92.   
        Work on  the elevator pit portion of the job was carried out
   after the tunnel  excavation.  Beckman employees struck  water in
   the elevator pit  excavation on October 10, 1990.   Transcript at
   48.   The  record indicates  that  Beckman had  knowledge of  the
   boring  logs sometime before  October 2, 1990,  when it mentioned
   them  in a  letter addressed  to GSA.   Appeal File,  Exhibit 10.
   Despite its earlier experience with the "quicksand" in the course
   of excavating the  tunnel, and its knowledge of  the existence of
   the boring logs, Beckman expended over $30,000 attempting methods
   of  dewatering  short of  hiring  a  wellpointing sub-contractor.
   This money and these efforts were expended in an attempt to  keep
   costs below  that of  wellpointing, but  were ultimately  wasted.
   Transcript at 55-56.
 
        The contract provisions relating  to dewatering requires the
   contractor to:
 
        F. Dewatering:  Prevent surface water and subsurface or
        ground water from flowing into the excavations and from
        flooding project site and surrounding area.
         
        1.   Do not  allow water to accumulate  in excava-
             tions.   . .  .  Provide  and maintain pumps,
             well points, sumps, suction   and   discharge
             lines, and other dewatering system components
             necessary   to   convey   water   away   from
             excavations. 
 
   Appeal File, Exhibit 1, page 02200-4 at 3.01 F.
 
                               Discussion
 
        Beckman argues that  the respondent had  a duty to  disclose
   its  superior knowledge of the subsurface conditions that Beckman
   was likely  to face on this project, and  that the breach of this
   duty entitles Beckman to a  full recovery of the dewatering costs
   on  this project.  Respondent avers  that the solicitation, which
   became  the contract,  put bidders  on  notice of  the subsurface
   conditions   they  were  likely   to  encounter,  and   that  the
   information in the  boring logs was not relevant to the work site
   where  this contract  was  performed.   Specifically,  respondent
   contends that  the solicitation  provision on  dewatering puts  a
   contractor on notice that ground water mixed with fine  sand is a
 
                                                                   5
 
   distinct  possibility because  of  the mere  mention of  the term
   "well points" (a  method of dewatering sandy soil  defined above)
   in  the solicitation  and contract.    Respondent's Post  Hearing
   Brief at 9.  Beckman counters that the language in the dewatering
   clause  of  the  contract  is merely  boilerplate,  and  does not
   satisfy respondent's obligation to  disclose actual knowledge  of
   subsurface conditions in the area.  
 
        We agree with appellant.  Where, as here, the respondent has
   actual knowledge that a contractor is likely to  encounter ground
   water mixed with fine  sand in the course of excavation work, the
   mere listing of  several dewatering methods, including  one which
   would work  in the  conditions likely to  be encountered,  is not
   sufficient to  satisfy  respondent's duty  to  disclose  superior
   knowledge of material information.
 
        The  duty   to  disclose   superior  knowledge   applies  in
   situations where:
 
        (1) a  contractor undertakes  to perform without  vital
        knowledge of a  fact that affects performance  costs or
        duration; (2)  the respondent was aware  the contractor
        had no  knowledge of and  had no reason to  obtain such
        information;  (3) any  contract specification  supplied
        misled the contractor,  or did not put it  on notice to
        inquire; and (4)  the respondent failed to  provide the
        relevant information.
 
   Petrochem  Services, Inc. v.  United States, 837  F.2d 1076 (Fed.
   Cir.  1988) (citing American  Shipbuilding Co. v.  United States,
   654  F.2d  75, 79,  (Ct. Cl.  1981)).   In the  case at  hand the
   respondent  possessed soil borings for a project located directly
   across the  street from  appellant's  work site.   These  borings
   showed ground water  mixed with fine sand at a  depth of eighteen
   to twenty-two feet  below street level.   Nevertheless respondent
   let a  contract to excavate to a  depth of twenty-nine feet below
   street level without  providing these borings, stating  they were
   available  for viewing, or providing notice that water mixed with
   sand had  been found in  the adjacent  work site at  levels above
   those this particular contract called for.  Respondent's use of a
   standard  type  clause  specifying  various  dewatering  methods,
   including  wellpointing, does  not serve to  put a  contractor on
   notice of the  highly problematic subsurface conditions  of which
   the  respondent has  actual  knowledge.   In  fact, this  general
   clause  covers several  different dewatering  methods used  under
   various conditions  and  tends  to  lead a  contractor  into  the
   mistaken  belief that  the Government  did  not possess  specific
   information  about the actual soil  conditions in the vicinity in
   which the work was to be performed.  
 
        Taking the  elements of a superior knowledge  claim in turn,
   the Board  concludes that  all the elements  are satisfied.   The
 
                                                                   6
 
   information  withheld by the respondent was relevant to Beckman's
   cost for  the project.  Even though the  boring logs were not for
   the exact site on which Beckman was to work, they were taken from
   the  property  directly  across  the street,  and  would  give  a
   contractor  a  good  idea  of the  subsurface  conditions  in the
   immediate area.  The respondent  knew, or should have known, that
   the information was unknown  to appellant and that appellant  had
   no  way  of  knowing  the   logs  even  existed.    The  contract
   specification did not  disclose that the respondent  had specific
   knowledge of subsurface conditions.  In fact, its  general nature
   tends to indicate that respondent had no idea what the subsurface
   conditions   might  be  and  was   merely  trying  to  cover  all
   contingencies.  Appellant was justified  in believing that if the
   respondent  had material  knowledge in  its  possession it  would
   honor  its   affirmative  duty  to  disclose   that  information.
   Further, Mr. Beckman  testified that had he seen  the boring logs
   he definitely  would have  factored in the  cost of  a dewatering
   subcontractor.   We conclude  that the information  was relevant,
   and the  respondent breached its  duty to  disclose its  superior
   knowledge.   Accordingly, the  cost of the  wellpointing work for
   the elevator pit, $50,548.13, is awarded to appellant.   
 
        With respect to the tunnel, the respondent contends that the
   money spent on dewatering efforts was wasted because the floor of
   the tunnel was eventually raised to avoid the problem.  The costs
   at  issue  were  incurred  during the  seven  day  delay  between
   appellant's striking ground water and notifying the respondent of
   the   problems  it  was   encountering.    However,  respondent's
   representative's decision  to redesign  the tunnel,  allowing the
   excavation to be raised slightly, was certainly influenced by the
   extreme difficulties encountered by Beckman, and the fact that he
   believed it would  be necessary to wellpoint the  tunnel in order
   to  complete  the work  as designed.    At the  time the  work in
   question was undertaken Beckman had not yet seen the boring logs,
   and  had not yet  tried any methods  of dewatering.   The methods
   employed in the  attempt to  solve the  "quicksand" problem  were
   undertaken  reasonably, and  appellant's  recovery should  not be
   thwarted because the respondent altered the design of the tunnel,
   or because the methods failed.  The cost of these efforts was not
   factored  into  appellant's bid  because the  respondent withheld
   knowledge  of  subsurface  conditions  which  it  had a  duty  to
   disclose.   Accordingly, Beckman  is awarded  $10,014.98 for  the
   costs of these efforts.
 
        Other work done on the elevator pit prior to the decision to
   wellpoint, however, is a different  matter.  That work was of  no
   benefit to the respondent, was not done pursuant to the direction
   of  the  respondent,   its  agents,  or  the  contract,  and  was
   undertaken unreasonably in  the hope that wellpointing  would not
   be  necessary.    The  contract  calls  for dewatering,  and  the
   contractor was left to its  own devices to choose the appropriate
   method.     While  Beckman  did  discuss  its  options  with  the
 
                                                                   7
 
   respondent's representatives, no one instructed Beckman on how to
   proceed.   Beckman  undertook its  chosen  methods after  similar
   attempts  had  failed  in  late  August  when  ground  water  was
   encountered in the tunnel excavation, and after it discovered the
   existence of the boring logs  that Mr. Beckman testified made him
   aware that wellpoints  were required to complete  the excavation.
   Under  these circumstances  we cannot  hold  that use  of a  non-
   wellpoint  dewatering method was  reasonable, and we  cannot hold
   the respondent liable for these extra costs.
 
        Given our resolution of this issue we see no need to discuss
   appellant's  alternative  theory for  relief under  the differing
   site conditions provision  of the contract.   The relief provided
   would be no  different under appellant's alternative  theory even
   if we agreed with its argument.
 
                                Decision
 
        This appeal  is  GRANTED  IN  PART.   Appellant  is  awarded
   $60,563.11 with interest  pursuant to the Contract  Disputes Act,
   41 U.S.C.   611 (1988).
                
 
 
 
                                                                  
                                      VINCENT A. LaBELLA
                                      Board Judge
 
   We concur:
 
                                   
   EDWIN B. NEILL
   Board Judge
 
                                    
   CATHERINE B. HYATT
   Board Judge