PBS&J Constructors, Inc.
Docket: ASBCA 57814, ASBCA 57964
Decision date: 2014-07-25

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of --
PBS&J Constructors, Inc. 
Under Contract No. W9126G-09-C-0016 
APPEARANCE FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 57814, 57964 
John S. Vento, Esq. 
Trenam Kernker 
Tampa, FL 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Charles L. Webster III, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Fort Worth 
OPINION BY ADMINISTRATIVE JUDGE SCOTT 
PBS&J Constructors, Inc. (PBS&JC) 
appealed under the Contract Disputes Act 
(CDA), 41 U.S.C. §§ 7101-7109, from the contracting officer's (CO's) denial of its 
$494,962 Type I differing site conditions claim under its contract awarded by the U.S. 
Army Corps of Engineers (Corps) for the design and construction of the Whole Barracks 
Renewal Complex, Fort Hood, Texas (ASBCA No. 57814), and from the CO's denial of 
its $368,063 claim due to the Corps' alleged unwarranted refusal to allow it to use 
shallow foundations in certain areas (balcony piers claim) (ASBCA No. 57964). The 
Board consolidated the appeals and held a four-day hearing in Fort Worth, Texas. We 
decide entitlement only. For the reasons stated below, we deny the appeals. 
DIFFERING SITE CONDITIONS CLAIM-ASBCA No. 57814 
FINDINGS OF FACT 
1. On 5 August 2008 the Corps issued a request for proposals (RFP) for the 
subject firm-fixed-price contract for a design/build barracks project (R4, tab 3)1 The RFP 
included the Corps' August 2007 geotechnical report (GTR). PBS&JC submitted a 
proposal on 24 October 2008 (R4, tabs l 5A, l 5B; see also R4, tab 3 at 1 of 39; tr. 1134 ). 
1 Unless otherwise noted, "R4" refers to the Rule 4 file and the Corps' supplemental 
Rule 4 file in ASBCA No. 57814. Some of those documents, e.g., the contract, 
also apply to ASBCA No. 57964. 

The Corps awarded it the contract on 27 February 2009, in the amount of $32,373,000. It 
incorporated the RFP and GTR. (R4, tab 3 at 2, 18 of39, § 1.2., at 209 of796) 
2. PBS&JC was a sister company to Peter Brown Construction (Brown). Atkins 
North America, Inc. (Atkins), the parent company, had design responsibility. PBS&JC 
began doing business as Brown at project start. 2 Kleinfelder Central (Kleinfelder) was 
Brown's geotechnical engineer and Alliance Geotechnical Group of Austin, Inc., 
(Alliance) was its geotechnical inspector. Alliance prepared daily activity observation 
reports and pier inspection reports. (R4, tabs 7B, 7C at Bates 259-394; tr. 1/36-38, 2/135) 
3. The RFP incorporated the Federal Acquisition Regulation (FAR) 52.236-2, 
DIFFERING SITE CONDITIONS (APR 1984) clause by reference, which provides concerning 
Type I differing site conditions that the contractor is promptly to notify the CO of 
"subsurface or latent physical conditions at the site which differ materially from those 
indicated" in the contract. If the conditions do differ materially and increase the 
contractor's cost or time in performing any part of the contract work, an equitable 
adjustment is to be made. The RFP also incorporated by reference the FAR 52.243-4, 
CHANGES (JUN 2007) clause. (R4, tab 3 at 6 of 39) 
4. For potential time extensions, the RFP included anticipated adverse weather 
delays, including four days each in January through June, September and October, and 
December, and three days each in July, August and November (R4, tab 3 at 2-3 of 11 ). 
5. The RFP required at§ 01 10 00, Statement of Work (SOW), that the contractor 
have a licensed geotechnical engineer interpret the GTR and develop earthwork and 
foundation recommendations and design parameters and that: 
If any additional subsurface investigation or laboratory 
analysis is required to better characterize the site or develop 
the final design, the Contractor shall perform it under the 
direction of a licensed geotechnical engineer .... lf differences 
between the Contractor's additional subsurface investigation 
and the government provided soils report or the reasonably 
expected conditions require material revisions in the design, 
an equitable adjustment may be made, in accordance with the 
provisions of the Differing Site Conditions clause. 
(R4, tab 3 at 31 of 796, ~ 5 .2.2.1.) The engineer was to prepare a final geotechnical 
evaluation report, to be part of the contractor's first foundation design submittal (R4, 
tab 3 at 31of796, ~ 5.2.2.2., at 108 of796, § 01 33 16, Design After Award,~ 3.5.3.). 
2 Like the parties, we usually refer to appellant PBS&JC for convenience. 
2 

6. The GTR included boring logs, noting that the 19 test holes were drilled in 
December 2003 and January 2004, for another project at the site that did not materialize. 
The logs identified the nature of the subgrade material through which the test bore was 
drilled; the test bore's depth; whether the subgra<;le material caved in or blocked the test 
bore; and whether water was present. Ten of the borings were drilled to depths from 21 
to 49 feet; nine were drilled from 3 to 10112 feet, referred to by the Corps, although not in 
the GTR, as the "deep" and "shallow" borings, respectively. The shallow borings had the 
prefix "lOA," Fort Worth's traditional designation for pavement borings. (R4, tab 3 at 
209 of796, tab 4 at Bates 2-3, 28-31; tr. 3/231, 241-42) The 19 borings were drilled 
across a site of over 12.4 acres, of which the barracks footprint was about 1.5 acres 
(tr. 1/49-50; Corps 12/19/12 resp. to app's proposed fact findings (APFF) in ASBCA 
No. 57814 (Corps dsc resp.) at 7, ~ 18). The project called for more than 540 drilled 
piers, each 
with an anticipated depth of32 feet (R4, tab 4 at Bates 12; tr. 2/99, 3/231). 
7. The GTR stated: 
Groundwater conditions were monitored during drilling 
operations, immediately upon completion of the test holes, 
and after 18-hour and 24-hour observation periods. Static 
water levels were measured in six of the nineteen 
borings ... with depths ranging from 11.8 feet to 28.5 feet 
below existing grade. The remaining test holes were dry or 
blocked. 
(R4, tab 4 at Bates 3) Static water levels in the six borings were reported as follows: 
Boring 
3ST-5440 
8A4C-5445 
8A-5446 
3ST-5447 
8A4C-5450 
8A-5454 
Static Level, feet 
21.5 
28.5 
11.8 
15.2 
18.0 
13.2 
(Id.) The list did not include boring 8A4C-5443, which the log described as "DRY" but 
which showed water present (finding 9). 
3 

8. The GTR continued: 
Subsurface conditions representative of the project site 
are shown on the boring logs .... actual subsurface conditions in 
areas not sampled may differ from those predicted. The 
nature and extent of variations across the sites may not 
become evident until construction commences, and the actual 
construction process may alter subsurface conditions as well. 
If variations become evident at the time of construction, [the 
Corps] should be contacted to determine if the 
recommendations presented in this report need to be 
reevaluated. 
(R4, tab 4 at Bates 6) 
These discussions are provided to the Design-Build 
Contractor to develop his foundation and pavement 
designs .... It should be noted that the discussions presented 
herein are based on the results of the Government 
geotechnical field investigation and laboratory testing 
program, engineering studies, and previous engineering 
experience with similar structures at Fort Hood. The 
Design-Build Contractor should consider the information 
provided in this report and comply with the requirements and 
recommendations presented herein when developing his 
foundation and pavement designs. The Design-Build 
Contractor may use the subsurface boring log and lab testing 
data presented herein as the sole basis to formulate his 
foundation and pavement designs, or, at his option, the 
Design-Build Contractor may supplement the information 
provided herein by his own geotechnical field investigations 
and laboratory testing program. 
(Id. at Bates 9) 
Groundwater should be anticipated during pier 
construction. Therefore, the drilling contractor shall be 
required to have temporary steel casing and pumps at the job 
site prior to construction of the drilled piers. 
(Id. at Bates 13) 
4 

9. Regarding the six borings within the building's footprint (see R4, tab 2 at 9), 
the boring logs,§ 15, "ELEVATION GROUND WATER," stated: 
8A4C-5443 
8A-5446 
8A4C-5445 
3ST-5447 
8A-5448 
8A4C-5450 
DRY 
AT 11.8' IMMEDIATELY 
24 HR. CHECK - 28.5' 
AT 15.2' 
DRY BLOCKED at 18' 
SEE BELOW [showing 
"WATER 
LEVEL" at 24 hour check at 18.0' 
and open to 3 
3 '] 
(R4, tab 4 at Bates 29-30, Sheets B201, B202) For boring 5443, which came within the 
building's footprint when PBS&JC added exterior walkways and 
balconies to its design 
(tr. 1157, 60; finding 54), despite the "DRY" note in§ 15, the log described the "WATER 
LEVEL" at the 24 hour check as at 13.5' and the hole as "BLOCKED" at 21.0' (R4, tab 4 
at Bates 29, Sheet B201). Although boring 5448 showed no static water level, and 
indicated "DRY" in§ 15, it also described the soil as "slightly moist" and "very moist" 
(id. at Bates 30, Sheet B202). For boring 5450, the log indicated that there was no 
sloughing above 30' (R4, tab 4 at Bates 30, Sheet B202; Corps dsc resp. at 21-22, ii 44). 
10. PBS&JC admits groundwater was detected from 11.8' to 28.5' but contends 
that the water at 11.8' was not an intrusion but "perched" water (app. 1/28/13 dsc. resp. to 
Corps 12/19/12 dsc br. (app. dsc resp.) at 
9, ii 24). Wayne A. Eddins, Alliance's project 
manager (tr. 2/29-30), who was not an expert witness, described perched water as: 
[U]sually ... when you've got a zone of clay and water migrates 
down and just sits right there. It [doesn't] go any further and 
it doesn't come anywhere else. It just kind of got to that layer 
and stopped until it evaporates or migrates horizontally . 
... [P]retty much a perched water table is something 
that's seasonal, based on rainfalls. 
(Tr. 2/120-21) He described "static water" as water that "reached a certain level within 
the boring and it stopped" (tr. 2/54). He opined that perched water in a boring does not 
indicate that casing will be required (tr. 2/121). Mr. Eddins confirmed that the GTR and 
borings did not discuss the quantity of water or provide any information concerning the 
type of water flow a contractor could expect to encounter (tr. 2/83). 
5 

11. PBS&JC understood that, under the Corps' technical regulations, no more 
than three 
inches of water could accumulate in a pier hole prior to the placement of 
concrete (tr. 2/50-51, 3/235; see R4, tab 7B at Bates 166-222 ("Less than three inches of 
water was present at the time of concrete placement."); see also tr. 2/20-21 ). Temporary 
casing keeps the drilled pier hole dry and maintains the integrity of its sidewalls, allowing 
concrete placement (see R4, tab 7C at Bates 224-27; app. dsc resp. at 17, ii 40). 
12. Joseph A. Williams became PBS&JC's senior project manager in February 2010 
(tr. 1133-34), about a year after contract award. On 24 February 2010 the Corps' 
Administrative Contracting Officer (ACO) and Resident Engineer, Harvey B. Hammer, 
rejected PBS&JC's geotechnical report as unsatisfactory (R4, tab 23; tr. 3/265-66). 
13. PBS&JC submitted to the Corps a design analysis dated 2 June 2010 by 
Bryan Rose, a licensed geotechnical engineer and Kleinfelder's principal project 
representative. PBS&JC ultimately did not proffer Mr. Rose as an expert witness. The 
parties agree that PBS&JC used the analysis, based upon the Corps' data, to estimate 
soils' potential vertical 
movement and consolidation, foundations' bearing capacities, and 
construction considerations, including deep foundations. (ASBCA No. 57964 (57964) 
R4, tab 9 at 35, 58, 60-61; tr. 1/37, 2/253-54, 256, 3/48-49; Corps dsc resp. at 48, ii 131) 
Regarding the GTR, the analysis stated at§ 2.4, Subsurface Water: 
[G]roundwater levels were monitored during drilling, 
immediately upon completion of each boring, and after 
18-hour and 24-hour observation periods. Static water levels 
were observed in 6 of 19 borings at depths of 11.8 to 28.5 feet 
below existing grade. The remaining borings were noted to 
be dry or blocked at the time of measurement. 
These short-term field observations generally do not permit an 
accurate evaluation of subsurface water levels at this location 
and should not be interpreted as a groundwater study. It 
should be noted that the observations made within the [GTR] 
may not represent conditions at the time of construction and 
the presence of groundwater may affect certain construction 
activities and long-term performance of the foundations. The 
quantity of transient water is variable and is dependent on 
climatic conditions before and during construction. The 
foundation contractor should check the subsurface water 
conditions just prior to foundation e?'cavation activities. 
6 

(57964 R4, tab 9 at 66) It stated at§ 4.4 Drilled Pier Foundation Construction Criteria: 
7. Zones of sloughing soils or groundwater may be 
encountered within the soil, which could cause 
sloughing of pier sidewalls to occur. Thus, we 
recommend that provisions be incorporated into the 
plans and specifications to utilize temporary steel casing 
to control sloughing and/or groundwater during pier 
construction should it occur. 
(57964 R4, tab 9 at 82) 
14. According to Mr. Rose, bore hole collapse or blockage causes include 
water, drilling, excavation, and loose soils. Water and blockage indicate a potential, 
but not definite, casing need. What governs casing is the relative stability of the 
borehole sidewalls, and the volume of water and rate at which it is encountered. 
Water in the GTR's borings did not communicate that casings had to be used because 
the logs did not provide enough information to ascertain its volume or flow rate. 
Mr. Rose was not suggesting that the logs were deficient. He opined that they were 
largely consistent with the applicable geotechnical standard of care. (Tr. 2/266-67, 
3/12, 19-20, 78, 97) 
15. Per Mr. Rose, borings within a building's footprint are considered first and are 
the most relevant regarding materials to be encountered, but proximity is less important 
where water is concerned. Adjacent borings and any in the project's vicinity are relevant 
because water moves regionally through the project site. (Tr. 3/6, 29-31, 80-82, 90) All 
water shown in a boring log is relevant: 
All water is relevant, whether it be a static groundwater level 
table, a perched condition with sufficient quantity, even 
though it's not static--it's a transient or temporary condition-­
could, when drilling through it, infiltrate into the pier hole and 
adversely affect construction and requir[ e] casing. 
(Tr. 3/83) However, he opined that, while borings might alert a contractor to the 
possibility of encountering water during construction, they do not provide enough 
information to ascertain how much will be encountered (tr. 3/7, 79). 
16. Mr. Rose, who was experienced with the subsurface conditions at Fort Hood 
and its vicinity, found the conditions disclosed in the GTR to be generally consistent with 
the two or three previous reports he had done at Fort Hood and with the geological profile 
7 

one would expect in that region. Kleinfelder did not see anything indicating that it might 
need to do a supplemental investigation. (Tr. 2/260, 262-63) 
17. According to Ronald Harris, the Corps' supervisor of materials quality 
assurance testing at Fort Hood, if a drill hole is blocked, it indicates that the sidewall has 
been compromised and, in 99% of the cases, water is involved, usually the reason for the 
blockage. He found that every project boring hole from 20-40' showed water, blockage, 
or both. In a 1July2010 preparatory meeting with PBS&JC and subcontractors on drilled 
piers he advised that they needed casing on site for each anticipated diameter size hole so 
they would be ready. (Tr. 3/205, 211-14, 216-17, 233) 
18. The parties agree that PBS&JC began drilling and pouring concrete piers on 
about 11August2010. Its project superintendent, Ron Hartshorn, arrived on site in late 
August 2010. (R4, tabs 7B, 7C at Bates 226, 395; tr. 1/37, 3/115, 118; app. dsc resp. at 
17, il 42; app. 1/28/13 balcony piers reply (app. hp reply) at 17, il 89). 
19. On 7-8 September 2010 a severe storm occurred. PBS&JC's Quality Control 
Reports (QCRs) referred to "extreme weather conditions" (R4, tab 12 at 605, 607), and 
recorded a 
total of 8.25" of rain on the project site (id. at 604-05). Mr. Williams 
described it as a "tropic storm" like "a one-in-50-year event" (tr. 1/78). He believed that, 
in connection with compaction problems he attributed to a prior contractor, the heavy 
rainfall in a short period created unsuitable material that directly related to the amount of 
water encountered during drilling. He thought that the effect on the subgrade material 
could have resulted in a French drain that impacted 305 drill holes that had immediate 
water and were cased and another 239 that were cased although no water was visible at 
first (see finding 20). Only four holes did not contain water. (R4, tab 12 at Bates 604-05; 
app. 2nd consol. supp. R4, tab A-021 at 1; ti'. 1/63-64, 68, 70-74, 78-79, 175; Corps dsc 
resp. at 7, il 17) 
20. Most often when drilling began water would start coming in the pier sidewalls 
at differing rates and elevations. In the 305 holes where water was present, casing was 
required because it was coming in "so fast" according to Alliance's Mr. Eddins (tr. 2/49). 
In the 239 holes where 
no water was present initially, after one to five hours, there were 
saturated soils and sidewalls and water at the bottom of the pier that could not be pumped 
down to an acceptable level. Terry Herzog, of Herzog Foundation Drilling (Herzog), a 
subcontractor to PBS&JC's subcontractor Gibson Concrete (Gibson), was the project's 
drilling superintendent. Herzog pumped out the holes the first day or so but thereafter did 
not try pumping because "the water was coming in too fast and caving off the sides" 
according to Mr. Herzog (tr. 2/9). Herb Morgan, the Corps' quality assurance inspector, 
recommended that even the holes that initially did not contain water be cased. PBS&JC, 
Gibson, Alliance and Herzog all concurred. PBS&JC ultimately had to case most of the 
pier holes because of significant groundwater intrusion, unstable subgrade materials, or 
8 

both. (Tr. 1143-44, 66-67, 2/5-10, 24-26, 44-45, 49-51; app. dsc resp. at 18, ~ 44; see also 
R4, tab 7C at Bates 395-96) 
21. PBS&JC's QCRs mentioned groundwater at times (R4, tab 12 at Bates 543, 
546,548,553,556,558,560,563,566,569,572, 574,577,580,583,587,589, 592,595, 
598). Gibson's daily reports, under "PROBLEMS/UNUSUAL CONDITIONS," mention 
water or casing on 12, 13, 17 and 18 August 2010 but do not mention groundwater 
concerning pier drilling thereafter, through 16 November 2010 (R4, tab 7 
A at Bates 62, 
63, 65-130). Alliance's daily reports for 13 August 2010 through 16 November 2010 
regularly state that "groundwater infiltration was observed" in the piers being drilled 
(e.g., R4, tab 7B at Bates 162, 222). They do not mention the amount, the infiltration 
rate, or the elevation at which water was encountered. None of these documents 
characterize the groundwater as immediate, massive or continuous. 
22. By letter of 11 January 2011 to the Corps' project engineer, Andy Heinchon, 
PBS&JC submitted a $494,962 request for equitable adjustment (REA) alleging a Type 
I differing site condition regarding the drilled piers. It did not request more time. By 
letter of 28 January 2011 to ACO Hammer, it converted its REA into a CDA claim, 
which it certified on 4 February 2011. (R4, tab 7C at Bates 224, 227-28, tabs 8, 10; 
tr. 4/86) 
23. According to PBS&JC's claim, the GTR and RFP "clearly state that a deep 
foundation system will be required" and the GTR, "while limited," provided 19 borings to 
depths of up to 49' (R4, tab 7C at Bates 224). The GTR indicated that ground water was 
in 6 of the 19 borings, from 11.8' to 28.5', and "it was reasonable to infer that 
groundwater was present to some extent" (id.). Nine of the borings were "within the 
consideration limits for the proposed building 
location" and they were evaluated (id. at 
Bates 225). Those were 1 OA-5442, 8A4C-5443, 1 OA-5444, 8A4C-5445, 8A-5446, 
3ST-5447, 8A-5448, lOA-5449, and 8A4C-5450 (tr. 11118). PBS&JC alleged that, while 
there was groundwater in four of the nine borings, this did not indicate that measures 
beyond pumping would be required. Further study to determine the type of material at the 
groundwater's depth was needed. Conditions affecting drilling included "quality of 
material..., cave-in considerations, dynamic versus static pressure of groundwater .. ., 
season of borings, and condition of groundwater (perched or aquifer)" (R4, tab 7C at 
Bates 225). The borings were in December 2003 and January 2004, which PBS&JC 
alleged to be two of the wettest months and considered the groundwater conditions 
encountered then to be a ''worst case scenario" (id.). 
24. The claim alleged that, based upon the RFP, "it was concluded that casing 
would be required at a ratio of 2 holes per 9 drilled, or 22.2% of the drilled pier 
locations" (R4, tab 7C at Bates 225). It alleged that, while PBS&JC had made a 22% 
pier casing estimate, starting on 16 August 2010, casings in all piers were required due 
9 

to groundwater levels and apparent instability of the shaft walls at depth. While the 
2 June 2010 Kleinfelder report had discussed potential groundwater and made 
recommendations should temporary casing be required, "no extraordinary geological 
conditions were noted or implied ... that would have changed [PBS&JC's] assumptions at 
bid time" (id. at Bates 226). It developed that PBS&JC had to case 97% of the drill 
holes (tr. 1145). 
25. The claim included what PBS&JC described as its "notes relative to the 
evaluated borings" upon which it relies in support of its alleged pre-proposal 22% casing 
estimate (R4, tab 7C at Bates 225). The handwritten notes are undated, unsigned and 
anonymous (id. at Bates 256-57). Mr. Williams, who authored and signed the REA, 
speculated that they were from its preconstruction department, which put its proposal 
together, but he was not involved in the casing estimate, could not recall any 
communications with its creator(s), and did not know who had arrived at the estimate or 
when (tr. 1/46, 117, 119-22, 201-02). He acknowledged: 
(Tr. 11124) 
Again, that would be a question probably better, I guess, 
asked of our preconstruction department. I mean, when I 
came on the project, per my previous testimony, was in 
February 2010, and the project was already awarded. 
26. The contractors on the project did not give Alliance 
or Mr. Eddins a project 
casing estimate and, prior to the hearing, he never saw the handwritten notations on the 
boring logs that PBS&JC contend were made by its preconstruction department in 
reaching a casing estimate (tr. 2/62-63, 95, 124). 
27. Mr. Rose of Kleinfelder was never asked to provide any casing estimate and 
was not involved in any 22% casing estimate by the contractor (tr. 3/75, 79). 
28. Although the annotations on the boring logs reflect a 22% casing estimate, 
they also note that "our driller assumed" that 30% of the drill holes would have to be 
cased, without identifying the driller or when the alleged assumption was made 
(R4, tab 7C at Bates 257). There is no evidence t~at any driller had been selected prior 
to PBS&JC's proposal. According to the project's drilling superintendent, Terry Herzog, 
it is normal and customary for the driller and the concrete subcontractor to bring casings 
and pumps to a project in case of groundwater. He was not involved with any pier 
casing estimate for the project. His father took care ofHerzog's bid estimates. 
Terry Herzog was unaware of any 30% casing estimate. He never saw the boring logs. 
He did not know PBS&JC's senior project manager Williams. (Tr. 2/16-18, 22, 24-25) 
10 

29. Without explanation, PBS&JC did not call anyone to testify who was involved 
in reaching the alleged 22% estimate. There is no contemporaneous evidence that the 
notes were prepared pre-proposal or of PBS&JC's pre-proposal assumptions concerning 
site conditions. Thus, we find that PBS&JC has not substantiated its claim that it 
reasonably interpreted and relied upon the GTR and 
boring logs, and arrived at a 22.2% 
casing estimate, prior to its submission of its proposal to the Corps. 
30. The 
claim alleged that an attached Alliance letter supported PBS&JC's 
"pre-proposal assumptions" (R4, tab 7C at Bates 226). The claim appears to have 
included two Alliance letters on geotechnical and differing 
site conditions issues 
(findings 31, 32), but, ultimately, PBS&JC did not proffer anyone from Alliance as an 
expert witness (tr. 2/31-32). As with Kleinfelder's various reports, we have considered 
Alliance's letters but do not deem them to be expert opinions. 
31. A 21 December 2010 letter to Mr. Williams from Mr. Eddins, prepared by 
Alliance's project engineer, pertained to geotechnical conditions during the drilled pier 
installation, based upon Alliance's review of the RFP, GTR and boring logs and 
interviews with its inspectors. Alliance stated, inter alia, that only 2 of the GTR's 
19 borings were within the structure's footprint, of which only 1 documented 
groundwater and that, based upon the GTR, about 31 % of the borings indicated water. 
However, in most cases, temporary casing was necessary to stem the water flow and/or 
prevent further sidewall sloughing and to limit water accumulation to 3" or less. The 
stabilization effort began on about 23 August 2010. Mr. Eddins acknowledged at the 
hearing that two borings within the building's footprint contained water, not one. 
(R4, tab 7C at Bates 395-96; tr. 2/43, 52-53, 103-04) 
32. The claim also included a 
7 January 2011 letter to PBS&JC from Mr. Eddins, 
stating that there had been a differing 
site condition, based upon Alliance's review of the 
RFP, the GTR, the boring logs and the 2 June 2010 Kleinfelder report, and that: 
In our professional opinion, it is reasonable to assume that the 
anticipated subsurface conditions re~ating to groundwater 
issues and casing requirements were substantially different 
than those encountered during the installation of drilled piers 
for the project. 
The conditions described in the above referenced documents 
would lead to a reasonable expectation of encountering 
groundwater in less than [30%] of the drilled piers and even 
fewer indications of potential side-wall instability. Based 
upon the conditions encountered during the drilled pier 
operations, and as presented in the documentation generated 
11 

during the full-time observation and reporting of the 
operations, casing was required in over [90%] of the piers due 
to either excessive groundwater intrµsion, side-wall instability 
and/or a combination of both conditions. 
(R4, tab 7C at Bates 258) 
33. PBS&JC alleged at the hearing and in briefing, but did not articulate in its 
claim, that a prior contractor's failures to compact soils after demolition and to remove 
debris were differing site conditions (see app. 1115/12 initial post-hearing br. at 10-12, 
APFF 65-76; finding 19). However, Mr. Eddins acknowledged that he could not 
say that 
debris and soils that were not as dense as others affected drilling or caused or contributed 
to the water encountered. He confirmed that the soils at the lower depths were competent 
enough to pour a pier and were as represented in the GTR and that the subgrade materials 
were what the boring logs indicated. In his view, the water caused the soil to become 
incompetent. (Tr. 2/48-49, 85, 94) 
34. Alliance had several Fort Hood projects involving pier installation. In a 
November 2010 geotechnical report for one of them, contractors were told to anticipate 
groundwater and to assume that about 100% of piers must be cased. In Mr. Eddins' view, 
if there is no direction about the number of piers to be cased, a contractor must arrive at a 
number but "you never know until you drill the hole" (tr. 2/58-59, 112). The record is 
unclear but he apparently believed that a 22%-38% casing estimate would have been 
reasonable for the subject project, based upon the GTR. (App. 2nd consol. supp. R4, 
tab A-018 at 19; tr. 2/57, 64-65, 
74-76, 80, 82; app. dsc resp. at 30, if 79) 
3 5. Herzog had prior experience at Fort Hood. For example, it had drilled piers in 
2007 or 2008 on another barracks project a few blocks away, on the same street as the 
subject project. Water was present, but it came in slowly and could be pumped. There 
was little caving. There was a requirement to have casings and pumps on that job, but no 
casings were used. (Tr. 2/11-12) Hitting groundwater on a drilling project and the use of 
casings was not unusual in Terry Herzog's experience. He had extensive experience with 
jobs that required casing and, at the time of the hearing, Herzog had "just started a job 
that has to be all cased" (tr. 2/24). However, the amount of groundwater on the subject 
project was unusual for him compared to his other jobs (tr. 2/14, 23-24). 
36. According to Mr. Williams, a basis of PBS&JC's differing site conditions 
claim is that it encountered a "massive amount" of water during installation of deep pier 
foundations (tr. 1135) and, for 305 of the drilled piers (see finding 19), there was a "steady 
and consistent" or "constant and immediate" flow, such that, as soon as holes were 
drilled, it was "clearly evident" that casings were required (tr. 1156, 64-65, see also 
tr. 1190, 160-61, 163, 169-70). However, he did not find the conditions encountered to be 
12 

different than shown in the boring logs. Rather, the logs did not quantify the amount of 
water to be encountered, its flow rate into the holes, how many casings or pumps would 
be required, how often the contractor would have to case or pump, or the number of holes 
that could be pumped versus the number that had to be cased (tr. 1/76-77, 208-09). Under 
cross-examination Mr. Williams testified: 
(Tr. 11170) 
Q Okay. And you testified, did you not, that this 
was somehow different, a different condition from that which 
was shown on the boring logs. Is that accurate? 
A Well, I think what I said was the conditions that 
we faced and the amount of water that we encountered, 
there's no way to determine from the boring logs the quantity 
and magnitude of the water. There was water shown in the 
logs, yes, but there's no way to quantify how much water. 
Q Okay. So the logs don't show the reader or 
indicate to the reader how quickly that water inflow occurred. 
Right? I mean, isn't that what you just- I thought that's what 
you just said, that the logs don't indicate the rate of inflow of 
groundwater. Is that accurate? 
A Yes. 
37. The 
CO denied PBS&JC's differing she conditions claim by final decision 
dated 25 July 2011 and this timely appeal ensued (R4, tabs 1, 2). 
3 8. The contract completion date was 31 October 2011. It was not completed on 
time. Final inspection was on about 8 December 2011. The Corps did not assess 
liquidated damages. (Tr. 4/143-44) 
Corps' Expert Evidence on Differing Site Conditions Claim 
39. Kenneth McCleskey, a registered professional geologist, with a Bachelor of 
Science degree in geology and a Master of Science degree in civil engineering, prepared 
the GTR in substantial part. As of the hearing, he was acting chief of the Corps' 
geotechnical engineering and design section at Fort Worth and had been acting chief of 
the geotechnical branch. He was offered and admitted without objection as an expert in 
the area of geotechnical engineering. He submitted an expert report dated 18 July 2012. 
(R4, tab 33; tr. 3/222-24, 228) We consider him to be a mixed fact and expert witness. 
13 

40. In his expert report Mr. McCleskey stated that, per PBS&JC's REA, in 
arriving at its claimed 22% pier casing estimate, it had considered groundwater and 
stability conditions in nine borings it deemed to be in the area of the new facility's 
construction. He noted that three of them were "lOA" borings that had only been drilled 
to a depth of 1 O' in areas of proposed new pavement construction for the prior project and 
were not intended to be used for foundation design. Piers were to be founded at depths of 
32'. Moreover, all other groundwater levels and instability noted in the borings were at 
depths exceeding 10'. Static groundwater levels between 11.8' and 28.5' below grade 
were measured in five of the six remaining borings. The sixth boring, 8A-5448, was 
blocked at 18', indicating unsuitable material, but in the comments on the boring log 
included in its claim, PBS&JC mistakenly stated that there was no cave-in. (R4, tab 4 at 
Bates 30, Sheet B202, tab 33 at 1-2; see also McCleskey expert testimony at tr. 3/231, 
241-42 (lOA borings drilled too short to be reasonably considered for foundation design) 
41. In 
Mr. McCleskey's expert opinion, PBS&JC's analysis of the boring logs in 
its claim was not reasonable. It did not consider all of the deep borings, including those 
that were not in the building's footprint, but were close. All of the deep borings were 
consistent in terms of materials and subsurface conditions observed, including the 
presence and transmissibility of groundwater and the instability of subsurface materials 
indicated by blockage. (Tr. 3/240-41) He concluded in his expert report that, even 
considering only the borings PBS&JC used, its analysis was unreasonable: 
Hence all six of the borings considered by the PBS&JC casing 
analysis that were drilled to the requisite pier foundation 
depth demonstrated either the presence of groundwater, 
instability of subsurface materials, or both, which would 
reasonably indicate the potential need for casing which should 
have been accounted for in the contractor's bid. Therefore, 
even considering only the borings PBS&JC used in their 
casing requirement analysis, a determination that casing 
would be needed in only 22 percent of the piers appears to be 
inadequately and unreasonably low. 
The PBS&JC pier casing analysis did not include the four 
other deep (foundation investigation) borings drilled during 
the [Corps] geotechnical subsurface investigation ... borings 
8A-5438, 3ST-5440, 3ST-5452, and 8A-5454. These borings 
should also have been considered by PBS&JC in the 
subsurface information analysis due to their proximity [to] the 
14 

project site. Out of the ten total deep borings, groundwater 
was noted in seven of the borings, while the remaining three 
were dry; blockage at various depths was also noted in the 
majority of the deep borings, indicating the presence of 
unstable materials. It is therefore reasonable to assume that 
100 percent of piers would require casing. 
(R4, tab 33 at 2; see also tr. 3/236-38, 250, 256-57 (GTR's borings demonstrated 
materials' permeable nature and their ability to transmit groundwater because 7of10 of 
deep borings were determined to have transmitted water and 10 of 10 indicated either 
groundwater or unstable materials as reflected by blockages.)) 
42. Mr. McCleskey acknowledged that water's flow rate is potentially a factor in 
determining whether to case a pier. The GTR showed stable water levels, but the inflow 
rate could be variable. (Tr. 3/236) 
43. In Mr. McCleskey's expert opinion, job site conditions during drilling were 
similar to those indentified in the GTR's site field investigation (tr. 3/263-64). However, 
in the nature of fact evidence, he responded to questioning by PBS&JC's counsel that site 
conditions "could have been drier, but they could have been much wetter, and as we all 
know now, they turned out to be much wetter at that time" (tr. 3/261). The questioning 
mixed references to conditions at the time of PBS&JC's proposal compared to when the 
borings were taken and changes from the time of the proposal to the time of construction 
(tr. 3/259-61). We infer, in logical context, that Mr. McCleskey was referring to 
conditions at the time of pier drilling. 
44. Mr. McCleskey acknowledged that contractors were entitled to rely upon the 
GTR's boring logs. The Corps considered the GTR's information, including the number 
of borings drilled and the similarity of the subsurface conditions encountered, to be 
completely adequate for contractors' use in submitting their proposals. (Tr. 3/239, 
250-51, 260-61, 263-64) 
DISCUSSION 
As PBS&JC describes it, the "crux" of its differing site condition claim is: 
[T] he difference between the type of groundwater found in the 
borings, static water, and the immediate and continuous 
significant inflow of water which was discovered in the holes 
immediately upon drilling or shortly thereafter - a condition 
nowhere described in the [GTR]. 
15 

The groundwater was a differing site condition not because it 
was encountered in 97% of the holes, but because of the 
immediacy, rate of flow, and quantity of the groundwater that 
was encountered which resulted in 97% of the holes being 
cased rather than pumped. 
(App. dsc resp. at 30, ~ 79, at 31, ~ 81) 
The Corps responds, inter alia, that there was no differing site condition and 
PBS&JC's alleged interpretation of the boring logs was unreasonable. The three sets of 
contemporaneous daily logs do not support its description of the crux of its claim. 
Further, PBS&JC has not met its burden to prove reliance because it did not produce any 
verifiable documentation that it evaluated the boring logs or considered the pier casing 
issue before it submitted its proposal and did not produce any witness who had first-hand 
knowledge of its alleged casing estimate, including who made it and when. 
To establish a Type I differing site condition PBS&JC must prove that: 
(1) [T]he contract contained positive indications of the 
conditions at the site; (2) it reasonably interpreted and relied 
upon the indicated site conditions; (3) the conditions 
encountered were materially different from those indicated; 
( 4) the conditions encountered were reasonably unforeseeable 
based upon all the information available at the time of 
bidding; and (5) its injury was caused solely by the differing 
site condition. 
Nova Group, Inc., ASBCA No. 55408, 10-2 BCA ~ 34,533 at 170,321. The Federal 
Circuit has addressed iterations of these criteria in International Technology Corp. v. 
Winter, 523 F.3d 1341, 1348-49 (Fed. Cir. 2008); H.B. Mac, Inc. v. United States, 153 
F.3d 1338, 1345 (Fed. Cir. 1998); Stuyvesant Dredging Co. v. United States, 834 F.2d 
1576, 1581 (Fed. Cir. 1987); and P.J Maffei Building Wrecking Corp. v. United States, 
732 F.2d 913, 916 (Fed. Cir. 1984). Borings are the most significant indication of 
subsurface conditions. Nova Group, 10-2 BCA ~ 34,533 at 170,322. 
Regarding factor (1), the GTR and boring logs contained positive indications of 
site conditions. The GTR warned that "[g]roundwater should be anticipated during pier 
construction" and required the drilling contractor to have temporary steel casing and 
pumps on-site prior to drilled pier construction (finding 8). It listed 6 of the 19 borings at 
static water levels beginning at 11.8' and stated that the rest were dry or blocked. 
16 

Alliance's Mr. Rose acknowledged that blockage causes include water and loose soils and 
that water and blockage indicate a potential casing need. There were six borings within 
the building's footprint, of which two, 8A4C-5443 and 8A-5448, were not on the static 
water level list. At the logs' elevation groundwater section, 8A4C-5443 was stated to be 
dry but the log elsewhere showed water at 13.5' and the hole as blocked at 21.0'. Boring 
8A-5448 was indicated to be dry and showed no static water level, but the soil was 
described as slightly moist and very moist. (Findings 7, 9, 14) 
PBS&JC claimed that the borings were taken in two of the wettest months, 
December 2003 and January 2004, and represented a "worst case scenario" for 
groundwater conditions (finding 23). However, the RFP did not distinguish those months 
and anticipated 
adverse weather in many other months as well (finding 4). 
Concerning the reliance factor (2), the GTR provided, and the Corps 
acknowledges, that PBS&JC was entitled to rely upon the boring logs (findings 8, 44). 
However, the handwritten notes which PBS&JC cites for its alleged 22% pre-proposal 
casing estimate are undated, unsigned and anonymous. PBS&JC's senior project 
manager Williams speculated that they were from its preconstruction department, but he 
was not on the job until after contract award, was not involved in the casing estimate, 
could not recall any communications with its creator(s), and did not know who had 
arrived at the estimate or when. (Finding 25) Alliance was not given any casing estimate 
and, prior to the hearing, Mr. Eddins had never seen the notations on the boring logs 
(finding 26). Mr. Rose of Kleinfelder was not asked for any casing estimate and was not 
involved in PBS&JC's alleged 
estimate (finding 27). Drilling superintendent Herzog was 
not involved with any pier casing estimate for the project (finding 28). 
PBS&JC did not explain why it did not call anyone to testify who was involved in 
reaching its alleged casing estimate, for which we draw some adverse inference. See 
Maintenance Engineers, ASBCA No. 52527, 01-2 BCA if 31,472 at 155,387. There is no 
contemporaneous evidence that the notes were prepared pre-proposal or of PBS&JC's 
pre-proposal assumptions about site conditions. It did not substantiate its claim that it 
reasonably 
interpreted and relied upon the GTR and boring logs, and arrived at a 22% 
casing estimate, prior to its submission of its proposal to the Corps. (Finding 29) 
Factor (3) requires a comparison of conditions encountered to those indicated in 
the contract and a determination of whether they were materially different. First, as we 
discussed under factor (1), the contract did indicate subsurface conditions. However, to 
prove a Type I differing site condition, PBS&JC must show that the contract contained 
some indication of the particular conditions at issue. As we have summarized: 
A Type I differing site condition claim is dependent on 
what is "indicated" in the contract. Foster Constr. C.A. and 
17 

Williams Bros. Co. v. United States, 435 F.2d 873, 881 (Ct. 
Cl. 1970) ('"On the one hand, a contract silent on subsurface 
conditions cannot support a changed conditions claim.... On 
the other hand, nothing beyond contract indications need be 
proven."). A contractor cannot be eligible for an equitable 
adjustment for Type 1 changed conditions unless the contract 
indicated what those conditions would supposedly be. P.J. 
Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 
916 (Fed. Cir. 1984); S.T.G. Construction Co. v. United 
States, 157 Ct. Cl. 409, 414 (1962). 
NDG Constructors, ASBCA No. 57328, 12-2 BCA ii 35,138 at 172,503. 
Mr. Eddins of Alliance acknowledged that that the soils at the lower depths were 
competent enough to pour a pier and were as represented in the GTR and that the 
subgrade materials were what the boring logs indicated. He believed that water caused 
the soil to become incompetent. (Finding 33) He also confirmed that the GTR and 
borings did not discuss the quantity of water or provide any information concerning the 
type of water flow a contractor could expect to en~ounter (finding 10). 
Ironically, as suggested in its description of the crux of its claim, which focused 
upon the rate of inflow of water, PBS&JC principally complains about the contract's 
alleged lack of site condition indications rather than incorrect indications or changes in 
the conditions (findings 10, 14, 15, 36). PBS&JC's counsel stressed this point in his 
opening statement: 
(Tr. 1/15-16) 
The [GTR] does not describe the water levels. It does 
not state how many casings the contractor must be prepared to 
use. It doesn't state the quantity or the flow rate [of] water, 
and it doesn't discuss anything with respect to expected 
infiltration into the site. None of that is in the [GTR]. 
Regardless, Mr. McCleskey admitted that conditions were "much wetter" than they 
were when the borings were taken. We inferred that "much wetter" meant at the time of 
pier drilling. (Finding 43) Nevertheless, this alone does not trigger application of the 
differing site conditions clause. PBS&JC itself suggested that the cause of the additional 
water could be extreme weather. Drilling began on about 11August2010 and PBS&JC 
began to encounter water relatively soon thereafter that pumping did not resolve (findings 
18, 20), but Mr. Williams believed that a severe storm on 7-8 September 2010, in 
connection with compaction problems he attributed to a prior contractor, created 
18 

unsuitable material that directly related to the amount of water encountered during 
drilling (finding 19) However, "weather occurring during contract performance, no 
matter how severe, and other acts of God alone do not fall within the provisions of the 
Differing Site Conditions ... clause." Commercial Contractors Equipment, Inc., ASBCA 
No. 52930 et al., 03-2 BCA ii 32,381 at 160,255. Moreover, the differing site conditions 
clause protects a contractor from undisclosed or unknown site conditions that predate the 
contract, not something occurring thereafter. See John McShain, Inc. v. United States, 
375 F.2d 829 (Ct. Cl. 1967) (addressing predecessor changed conditions clause); 
Commercial Contractors Equipment, 03-2 BCA ii 32,381 at 160,258. 
Factor (4) calls for PBS&JC to show that the conditions it encountered were 
reasonably unforeseeable based upon all the information available at the time of its 
proposal. Drilling superintendent Herzog opined that hitting groundwater on a drilling 
project and the use of casings were not unusual, but the amount of groundwater on the 
subject project was unusual (finding 35). Mr. Eddins of Alliance, who was not an expert 
witness, opined that less than 30% to about 31 % of the project borings indicated that 
water was present, fewer indicated sidewall instability, and a 22%-38% casing estimate 
would have been reasonable. According to his 21 December 2010 letter in support of 
PBS&JC's claim, over 90% of the piers had to be cased due either to excessive 
groundwater intrusion, side-wall instability, or both. Mr. Eddins noted at the hearing that, 
in a later Fort Hood project, the geotechnical report told contractors to assume that 100% 
of the piers would have to be cased. (Findings 10, 30-32, 34) 
However, as we have found, there is no contemporaneous evidence of PBS&JC's 
pre-proposal assumptions concerning site conditions (finding 29). According to expert 
McCleskey, PBS&JC's analysis of the boring logs as presented in its claim was not 
reasonable (findings 40, 41 ). Finally, although it did not specify a number of drill holes 
to be cased, the GTR for the subject project alerted prospective contractors that 
"groundwater should be anticipated during pier construction" and that casing and pumps 
were required on-site prior to drilled pier construction (finding 8). As Mr. Eddins 
acknowledged, ifthere is no direction concerning the number of piers to be cased, "you 
never know until you drill the 
hole" (finding 34). 
Thus, PBS&JC has not met the 
requirements to establish a compensable differing 
site condition set forth in factors (1)-(4). Factor (5) largely pertains to quantum, which 
we need not reach. 
DECISION 
DIFFERING SITE CONDITIONS CLAIM-ASBCA No. 57814 
We deny the appeal. 
19 

BALCONY PIERS CLAIM - ASBCA No. 57964 
FINDINGS OF FACT 
We incorporate our findings in ASBCA No. 57814 to the extent relevant. 
45. SOW § 3 .1.1. prohibited exterior egress balconies (R4, tab 3 at 4 of 796), but 
§ 6.2.1 stated: "Use of exterior wrap-around balcony is a deviation (approved by an 
existing waiver) from ... [§] 3.1.1." (id. at 42 of796). SOW§§ 3.2.3.6., 6.2.3., 6.5.1. and 
6.11.8. also refer to balconies for the barracks (id. at 10, 50-51, 59 of 796). Under SOW 
§§ 3.1.3.1. and 3.1.3.1.(a) gross building area was measured to the outside face of exterior 
closure walls. It included one half the area of exterior covered areas such as balconies, 
breezeways, exterior corridors, and porches, which were measured from the face of the 
enclosure wall to the edge of the covered area. (57964 R4, tab 8 at 24) 
46. RFP § 00 21 00 stated that "[ s ]pecial foundation work is required due to 
expansive soils found at Fort Hood" (R4, tab 3 at 5 of 106, if 1.1. ). 
4 7. Under RFP § 00 73 00, Special Contract Requirements (SCR), the contractor 
warranted that its design would meet contract requirements (R4, tab 3 at 20of39, §§ 1.7(a), 
1.8). SCR § 1.11, DEVIATING FROM THE ACCEPTED DESIGN (JUN 02), stated: 
(a) The Contractor shall obtain the approval of the Designer 
of Record [DOR] and the Government's concurrence for any 
Contractor proposed revision to the professionally stamped 
and sealed and Government reviewed and concurred design 
before proceeding with the revision. 
( c) Any revision to the 
design, which deviates from the 
contract requirements (i.e., the [RFP] and the accepted 
proposal), will require a modification, pursuant to the 
Changes clause, in addition to Government concurrence. The 
Government reserves the right to disapprove such a revision. 
(R4, tab 3 at 22 of 39) 
48. RFP § 01 33 16, Design After Award [DAR], § 1.2., stated that the 
contractor's DOR is responsible for contract compliance (R4, tab 3 at 97, 100of796). 
Section 3.5.3.1. stated: 
20 

The contractor's licensed geotechnical engineer shall prepare 
a final geotechnical evaluation report, to be submitted along 
with the first foundation design submittal. This information 
should be made available as early as possible during the 
over-the-shoulder progress review process. The geotechnical 
report shall summarize the subsurface conditions and provide 
recommendations for the design of ... foundations .... The 
[report] shall recommend foundation systems to be used .... 
(R4, tab 3 at 108 of 796) 
49. GTR § 5, "Discussions," stated: 
Development of the final foundation and pavement 
designs are [sic] the responsibility of the Design-Build 
Contractor and shall be in compliance with the requirements 
established herein. However, the Design-Build Contractor 
shall provide to the Government engineering studies and 
design calculations that support the· foundation and pavement 
design recommendations .... The Design-Build Contractor's 
foundation and pavement design recommendations shall be 
reviewed for technical adequacy and compliance with the 
criteria established in the [RFP], including this document. 
Specific 
requirements for the Design-Build Contractor's 
foundation and pavement design analysis are provided in 
section 5.f [Emphasis added] 
(R4, tab 4 at Bates 9) The referenced§ 5.f, "Requirements for the Design-Build 
Contractor's Foundation and Pavement Design Analysis," stated: 
(1) Recommended Foundation System(s). 
A foundation system consisting of reinforced concrete 
straight-shaft drilled piers shall be utilized for [the project}. 
The Design-Build Contractor shall design the straight-shaft 
drilled piers in accordance with the requirements and design 
parameters provided in this report. :{Emphasis added] 
(R4, tab 4 at Bates 24) 
21 

50. GTR § 5.b, "Foundation Design Considerations, Recommendations, and 
Requirements," stated: 
Based on the results of the geotechnical field investigation 
and laboratory testing program, and previous engineering 
experience at Fort Hood for similar buildings to those of the 
[project], the following recommendations, design parameters, 
and requirements are provided. For the size and type of the 
proposed facility to be constructed at Fort Hood as part of this 
project, and the site-specific subsurface conditions present, a 
reinforced concrete straight-shaft drilled pier foundation 
system is typically considered best-suited foundation system 
[sic]. Reinforced concrete straight-shaft piers have proven to 
be a highly successful foundation system at Fort Hood. A 
shallow foundation system consisting of reinforced concrete 
continuous and/or spot spread footings is not considered to be 
a viable alternative due to the presence of highly expansive 
and compressible clay overburden soils and fill materials and 
to the depth of a competent bearing stratum beneath the 
overburden soils. Therefore, shallow footing and foundations 
are not allowed. [Emphasis added] 
(R4, tab 4 at Bates 11) 
51. GTR § 5.d(l) stated: 
Pavilions and other Small Support-type Structures. Covered 
Pavilions and any other small ( <500 GSF) support-type 
structures (if applicable) can be supported on reinforced 
concrete slabs-on-grade.... It is further recommended that 
subgrade preparation ... consist of providing a minimum of 36 
inches of compacted nonexpansive fill below the 
soil-supported slab. [Emphasis added] 
(R4, tab 4 at Bates 15) 
52. The barracks are modular unit structures made of wood. The exterior balconies 
are described as 2- or 3-floored (balconies on second and third floors, covered walkway 
underneath). (Tr. 1142-43, 2/206, 3/126, 4/31, 113; see R4, tab 35 at Bates 7, Sheet S-000; 
exs. A-001, A-002) Shaddy Shafie, a lead structural engineer at Atkins, and a licensed 
structural engineer in several states and Puerto Rico, was the DOR (tr. 21132-37). 
Regarding G TR § 5.d(1) (finding 51 ), he acknowledged that the balconies were overall a 
22 

continuous system, over 500 gsf. However, for structural design loading criteria, he would 
break down the system into the balconies' columns. He thus deemed that the whole balcony 
system, regardless of the balconies' large size per floor, could be akin to a covered pavilion 
and a small support structure. (Tr. 2/207-08) Project superintendent Hartshorn proposed at 
the hearing that each column section involved about 300 square feet (tr. 3/150-51 ). 
Alliance's Mr. Rose considered the GTR's provision to be ambiguous as to whether the 
under 500 gsf limitation applied to covered pavilions (tr. 3/105). He stated that the balcony 
system could be construed to be a covered pavilion: 
(Tr. 3/106) 
Q .. .Is it your testimony that three floors of 
balconies and covered walkways, consisting of thousands of 
square feet of area constitute a covered pavilion? 
A Again, I'm not a structural engineer, but I don't 
see why it couldn't be construed that way. 
53. PBS&JC's proposal stated that the site preparation, "along with the foundation 
work (drilled piers and grade beams)," was scheduled for completion no later than 259 
days after the NTP (R4, tab 15, vol. 2, tab C, "Schedule Narratives" at 2). The parties 
agree that PBS&JC's proposal specified its intent to use a drilled pier foundation system 
beneath the barracks and did not indicate an intent to provide a design with exterior 
balconies (app. bp reply at 7, ~~ 36, 37). 
54. The Corps notified PBS&JC that its proposal was deficient due to the lack of 
exterior balconies. PBS&JC stated that its interpretation had been based upon SOW, 
§ 3.1.1., prohibiting exterior egress balconies (finding 45). It incorporated the balconies 
into its design and submitted its best and final offer, prior to contract award on 
27 February 2009. (R4, tab 16 at Bates 3-7; app. bp reply at 8, ~ 43; finding 1) 
55. The Corps issued a Notice to Proceed for design work on 16 October 2009 
(app. hp reply at 9, ~~ 45, 46). PBS&JC submitted an interim foundation design dated 
30 November 2009. The parties agree that, under its proposal, the foundation was to be 
based upon drilled concrete piers, but its submittal advocated a "screw pile" foundation 
system and its drawings depicted the balconies and covered walkways supported on screw 
piles. (R4, tab 15B, Schedule Narratives at 2, tab 17 at 3-4; app. bp reply at 9, ~ 48, at 10, 
~~ 51-52) Steel pipe screw piles are a proprietary deep foundation system that is less 
expensive than drilled piers, which are another type of deep foundation system, poured 
with concrete and reinforcing steel (tr. 1/94, 2/138, 3/124, 4/128). 
23 

56. PBS&JC and the Corps had several exchanges about screw piles, which the 
Corps disallowed (e.g., R4, tab 19 at Bates 2, tab 22 at Bates 70, tab 23). A 9 December 
2009 Kleinfelder report referred to the barracks as supported on screw piles and contained 
drawings depicting balconies and covered walkways 
supported by them (R4, tab 20 at 2-
4, 46-47, tab 21). PBS&JC's "90% Foundation Submittal" of 27 April 2010 still had the 
barracks on screw piles, said to be based on a 26 April 2010 Kleinfelder report (R4, tab 
24 at 3, § 2.0 at 41). However, attached 
specifications covered "DRILLED CONCRETE 
PIERS AND SHAFTS" (id. at 5-6, § 02 47 00) and the report stated: 
3.2 Deep Foundation Recommendations 
Based on the subsurface conditions encountered at the test 
boring locations and the project information provided, we 
recommend the proposed buildings be supported on straight 
shaft drilled piers.... Design information for drilled piers is 
provided in the following sections. [Emphasis added] 
(R4, tab 24 at 47) The parties agree that Kleinfelder's report did not reference or propose a 
shallow foundation system for any of the project work and its design drawings showed 
balconies and covered walkways supported by concrete piers (R4, tab 25, Sheet Nos. S-101 
through S-115; app. bp reply at 13-14, iii! 68-70). 
57. PBS&JC submitted a final foundation design dated 2 June 2010, with 
Kleinfelder's revised 2 June 2010 Geotechnical Engineering Study. The parties 
agree 
that it mentioned, for the first time, the possibility of using spread footing foundations 
under certain conditions ifthe subgrade were prepared properly. (57964 R4, tab 9 at 61; 
app. bp reply at 15, iii! 77-78) PBS&JC did not proffer DOR Shafie as an expert witness. 
According to him, the referenced subgrade preparation was required with either spread 
footings or drilled piers and he understood that it had been prepared per the GTR 
(tr. 2/155, 169, 178). He acknowledged that PBS&JC's previous submittals had shown 
the dormitory, including balconies, supported on screw piles or drilled piers, two types of 
deep foundation systems (tr. 2/203; see similarly tr. 3/68 (Rose)). There is no evidence 
that PBS&JC had raised with the Corps any alleged ambiguities in the above contract 
provisions that contained the words "recommended" or "recommendations" as well as 
"requirements" or concerning GTR § 5.d(l)'s shallow foundation exception for small 
support-type structures (see findings 49-51 ). · 
24 

58. Kleinfelder's 2 June 2010 study stated: 
3.1 Expansive Soil and [C]onsolidation Considerations 
[A] PVR [Potential Vertical Rise] approaching 4 inches is 
expected. The estimated vertical movement [of the soil] is 
greater than what most structural engineers consider 
acceptable for a shallow foundation system.... [Emphasis 
added] 
3.2 Shallow Foundation Recommendations 
We understand that spread footings will be used at select 
locations within the proposed structure. This decision 
depends on many factors including the magnitude of soil 
movement expected, the type of structure, the intended use of 
the structure, the construction methods available to stabilize 
the soils, and the owner's expectations of the completed 
structure's performance. However, one should always expect 
a grade supported foundation to undergo some differential 
vertical movements. 
3.2.1 Building Pad Preparation 
Provided herein are subgrade preparation recommendations 
for spread footings to modify the magnitude of soil 
movements beneath grade supported structures at this site to 
approximately one (I) inch .... 
3.2.2 Spread Footings 
Shallow footings bearing on a properly prepared subgrade 
may be used to support the proposed structure .... 
(57964 R4, tab 9 at 67-69) However, the report's § 3.3, "Deep Foundation 
Recommendations" (id. at 69), repeated the drilled piers recommendation contained in 
Kleinfelder's 27 April 2010 report (finding 56). The parties agree that the drawings again 
showed balconies and covered walkways supported by concrete piers (R4, tab 29, Sheet 
Nos. S-101 through S-115; tr. 1/109-10, 2/135; app. bp reply at 16, ifif 84-85), and that 
PBS&JC's finalized July 2010 drawings again depicted concrete 
drilled piers under the 
covered walkways and balconies (R4, tab 35; app. bp reply at 16, if 83). 
25 

59. PBS&JC's Contract Drawing Sequence No. S-001 states: 
THE PROPOSED FOUNDATION DESIGN DEPICTED ON 
THE PLANS AND SECTIONS IS BASED ON THE FINAL 
UPDATED GEOTECH REPORT BY KLEINFELDER 
DATED 0610212010 INDICATING REQUIREMENT OF A 
DEEP FOUNDATION SYSTEM. THE DRAWINGS 
DEPICT GRAPHICALLY THE PROPOSED LOCATION 
OF DRILLED PIER. [Emphasis added] 
(R4, tab 35, Soil Preparation and Foundations, Note 1) 
60. On 2 July 2010 an ACO issued a Notice to Proceed, received by PBS&JC on 
9 July 2010, for 
construction of the finalized foundation design (ex. G-1). 
61. PBS&JC considered the lobby, entrance, mail kiosk, exterior walkways and 
balconies to be outside the main building. It sought to use spread footing foundations 
under them because it was behind schedule 
due to water and casing issues with the drilled 
piers, wanted to avoid them, and was looking to make up time and save costs, including 
potential liquidated damages. {Tr. 1/98-101, 3/195) By 14 October 2010 email to 
ACO Hammer, with the stated goal of improving the schedule, Paul Cook, PBS&JC's 
Director of Operations, submitted "Design Modification Request - RFI [Request for 
Information ]-0119," seeking the Corps' "cursory review of our alternate foundation 
design intent" to remove drilled piers at the exterior balconies and replace them with 
spread footers, ''with the understanding that our designers will provide complete details 
and design calculations under separate correspondence for review and approval" (57964 
R4, tab 10 at Bates 149). He appended an internal PBS&JC RFI which inquired whether 
the 
change was viable or allowable. A PBS&JC structural engineer responded that it was 
viable. He included part of the 2 June 2010 Kleinfelder report (finding 57) and a sketch. 
(Id. at Bates 150; tr. 1/102-03) Mr. Cook told the ACO that one reason for the request 
was to speed up construction, but the ACO saw no benefit to the Corps in changing the 
contract (tr. 4/15, 41; Corps 12/19/12 resp. to APFF in 57964 (Corps bp resp.) at 28, 
~ 271 ). There is no evidence that PBS&JC provided "complete details and design 
calculations" by separate correspondence or otherwise. 
62. The parties agree that 
the RFP had a separate design value for live loads for 
exterior walkways, balconies and stairs of 100 psf and that PBS&JC's structural engineers 
calculated that drilled piers under the balconies and walkways columns would carry a live 
load of 600 psf (Corps bp resp. at 7, ~~ 205, 206). DOR Shafie contended in a 24 January 
2012 memorandum that the foundations in the 
construction documents for the walkway 
columns were a "significant overdesign" (57964, compl., ex. 5). However, he 
acknowledged at the hearing that his firm had done the design and that load-bearing 
26 

capacity was not the only reason to use a drilled pier foundation system (tr. 2/227-28). 
Mr. Heinchon conceded that the design could have been "overkill" regarding load bearing 
issues, but he noted that the main reason for using 
drilled concrete piers at Fort Hood was 
its expansive soil. Tied in to the main structure, balconies with spread footings would tend 
to move a lot more than the rest of the structure. (Tr. 4/111, 115) Mr. Rose also 
acknowledged that one consideration for using a drilled pier foundation system is that, if 
properly supported, it is less likely to move than a shallow supported foundation (tr. 3/52). 
63. By 15 October 2010 email, Mr. Heinchon notified PBS&JC that the Corps' 
Geotechnical Section had responded that the GTR disallowed spread footings and 
required drilled concrete piers. By 22 October 2010 email to PBS&JC, he reiterated the 
disallowance and noted that PBS&JC's technical report had recommended straight shaft 
drilled piers. He stated that there was no need for PBS&JC 
to speak directly to the 
Geotechnical Section. (57964 R4, tabs 11, 12) 
64. By letter to PBS&JC of 28 October 2010, ACO Hammer reiterated that spread 
footings were disallowed and he directed PBS&JC to continue with concrete piers per its 
approved 
foundation design. However, he stated that the Fort Worth District's 
geotechnical engineer would be at Fort Hood on 1and2 November 2010 and available to 
speak to PBS&JC's geotechnical engineer if it so wished. PBS&JC declined because it 
felt a structural issue was involved and it proceeded with the drilled piers, which were 
well underway by the time it received the ACO's letter. (R4, tab 30; tr. 1/106-07) 
65. PBS&JC contends that it requested, and was denied, the opportunity to confer 
with a Corps structural engineer concerning spread footings. DOR Shafie testified: 
A We submitted a letter and an RFI, requesting to 
use 
them at these locations, and requested to speak with a 
member of the Corps to discuss calculations and methods for 
making that system work, using spread foundations at the 
balconies and walkways. 
Q Were you or anybody working for you on the 
structural team ever permitted or given the opportunity to 
speak with a Corps structural engineer or a Corps 
geotechnical engineer or otherwise provide the details and 
design calculations for the use of spread footers under the 
walkways and balconies? 
A No. 
(Tr. 2/141) During cross-examination ACO Hammer testified: 
27 

Q You said a moment ago that you spoke to your 
geotech section. Correct? 
A Yes. 
Q You never spoke to a structural engineer, did 
you? 
A 
I don't believe so. No. 
Q And you never took the contractor up on the 
contractor's offer to have its structural engineer speak with 
your structural engineer. Isn't that right? 
A I don't- there was a lot of discussion where 
Paul Cook wanted- once he got our reply, what our reply was 
going to be or he got our letter, he wanted to meet with our 
geotech individuals. Okay. And he may have wanted to meet 
with our structural. We were going 
to entertain that. I think 
there were some emails back and forth. 
Whether that meeting took place, I don't know .... 
Q And you don't recall- and I can show it to you 
if you don't-there was an email said, We're not going to let 
you talk to our geotech section? 
A Well, I -there may have been that letter, and I 
don't deny that fact, but that didn't influence my decision. 
{Tr. 4/39-41) As noted, the Corps did arrange for PBS&JC's geotechnical engineer to 
meet with its geotechnical engineer but PBS&JC declined (finding 64). We have not 
found any written request by PBS&JC to speak to a Corps structural engineer 
or any 
corroborating evidence that the Corps denied any such request, whether written or oral. 
Thus, we find that PBS&JC has not substantiated its contention that the Corps refused to 
allow it to confer with a 
Corps structural engineer concerning its spread footings request. 
Also, we find no evidence that the Corps acted in any way to hinder or delay PBS&JC or 
to deprive it of the value of the contract. 
28 

66. By a 5 November 2010 RFI to the Corps, PBS&JC sought to use a reinforced 
concrete slabs-on-grade foundation for the mail kiosk based upon the GTR's provision 
that structures less than 500 GSF could be so supported (finding 51). The Corps 
responded that this was for stand-alone structures; otherwise the area must use the same 
foundation system as the structure to which it was connected. The kiosk did not qualify 
because it was structurally connected to the building. (R4, tab 32; see tr. 11112) 
Ultimately the Corps allowed spread footing foundations under the kiosk, a single story of 
qualifying small size. We are unpersuaded by project superintendent Hartshorn's 
calculation at the hearing that the kiosk's gsfwas 625 square feet (tr. 3/156-159). 
Regardless, the Corps essentially required PBS&JC to make the kiosk a separate structure 
by adding beams that created a building joint which resulted in a discontinuity between 
the 
two structures, and by constructing an expansion joint at the roofs interface to allow 
separate movement between the buildings. PBS&JC was behind schedule and the Corps 
thought 
this would help. ACO Hammer allowed the change without any further design 
review other than by the project engineer, any contract modification, or any request for 
money back from PBS&JC. (Ex. G-2; tr. 11112-13, 4/46, 72, 120, 122, 125) 
67. Drilling continued into mid November 2010. A total of 584 pier holes were 
drilled. (R4, tab 7B at Bates 222; app. dsc resp. at 17, ii 43) 
68. There was no contention that PBS&J's original drilled pier foundation design 
for the exterior balconies 
and walkways, which the Corps had approved, was defective. 
Although PBS&JC later contended that it was an over-design, it worked as intended and 
the Corps was satisfied with it. (Tr. 2/228-29, 4/118) 
69. By letter of 11February2011, Mr. Williams notified the Corps that PBS&JC 
would seek an equitable adjustment under the contract's Changes clause (57964 R4, tab 8 
at Bates 22). It submitted a certified $368,063 CDA claim dated 2 May 2011 to 
ACO Hammer, stating that its original proposal had deep foundations for the building 
consistent with the RFP but the Corps changed the building thereafter from internal 
corridors to an exterior balcony style building. PBS&JC alleged that, in its redesign, its 
engineering team "inadvertently added drilled piers to the exterior walkways" (id. at 
Bates 16), but the walkways were not an integral part of the building. They were exterior 
covered areas under SOW§ 3.1.3.1.(a) (finding 45), and application of the GTR's small 
structures provision (finding 51) was appropriate. PBS&JC noted that its DOR approved 
changing 
from drilled piers to spread footings under balcony columns and alleged that 
this was consistent with Kleinfelder's 2 June 2010 report concerning spread footings 
(findings 57, 58) and with SCR § 1.11 concerning deviations from accepted designs 
(finding 47). PBS&JC contended that its DOR's re-evaluation distinguished building and 
exterior balcony foundations, for which spread footings were a viable option. It stated 
that this design modification was within its contractual rights but, upon the Corps' refusal 
to allow it, it had installed drilled piers at the balcony footings per its original design. It 
29 

sought its alleged resulting additional costs. ( 57964 R4, tab 8 at Bates 16-17) There is no 
evidentiary support for PBS&JC's claim that drilled piers under exterior walkways had 
been added to its design "inadvertently." 
70. By final decision of 17 November 2011, the CO denied PBS&JC's claim and 
this timely appeal ensued (57964 R4, tabs 1, 2). 
Corps' Expert Evidence On Balcony Piers Claim 
71. Zachary Gerich, a licensed professional engineer, held a bachelor's of science 
degree in civil engineering and a master's degree in structural engineering. At the time of 
the hearing he was a senior structural engineer in the Fort Worth District's structural 
design s.ection. He was offered and admitted without objection as an expert in structural 
engineering. He submitted an expert report dated 18 July 2012. (R4, tab 34; tr. 4/48-51) 
72. In Mr. Gerich's opinion, GTR § 5.d.(1) (finding 51) applied to structures 
under 500 gsfthat were not part of a major structure-"more of a picnic-type structure, 
canopies, just anything that's not a major structure" (tr. 4/56). He described the balconies 
at issue as a three-story construction of steel framing with many methods of attachment to 
the building. He demonstrated that contract drawings showed that balconies and covered 
walkways were structurally integrated into the barracks through interconnected columns, 
beams, support angles, headed studs, and concrete decks. (Tr. 4/58-69) 
73. Based upon Mr. Gerich's expert testimony, the contract drawings, and 
DOR Shafie's acknowledgement that that the balconies were a continuous system over 
500 gsf, we find that the balconies and covered walkways were not under 500 gsf and did 
not qualify for the GTR § 5.d(l) exception to the contract requirement for a drilled 
concrete pier deep foundation system (findings 51, 52, 72, 76). We find the DOR's and 
Mr. Rose's propositions at the hearing that the balcony system could be akin to a covered 
pavilion and small support structure (finding 52) to be unreasonable and the Corps' 
interpretation to be the only reasonable one. 
74. Mr. Gerich opined that use of drilled pier shafts is to minimize movement 
within poor soils, such as the heave and shrinkage of the clays in the local Texas area. 
Piers are the main type of foundation that will eliminate any excessive movement in a 
structure. (Tr. 4/70) Corps expert McCleskey stated that the reinforced concrete straight 
shaft drilled pier foundation system was a project requirement due to the facility's design 
requirements, the subsurface conditions, and his and the Fort Worth District's previous 
design and construction experience for similar structures. The advantages of a drilled 
pier foundation system are that it extends below the soil's upper active zone that would 
tend to produce heave, expansion, consolidation, or settlement with a shallow foundation 
30 

system, and it can be extended to a deeper, higher bearing strength formation better able 
to support the anticipated design loads for the facility. (Tr. 3/243-44) 
75. Mr. Gerich similarly stated in his report that the GTR did not allow shallow 
foundations based upon the site's highly expansive and compressible clay soils. Potential 
heave in the upper 12' zone could be 2". Drilled shaft piers reduce potential swell and 
settlement to acceptable levels. Spread footings, however, will still move with the upper 
active soil zone. Movement can be reduced to tolerable levels only by extensive soil 
excavation and replacement with non-expansive fill. He also noted that Kleinfelder had 
recognized that there had to be extensive subgrade preparation, to minimize soil 
movement to about l ", if spread footings were used. However, in Mr. Gerich' s expert 
opinion, given that the balconies had a 5'-4" span, even I" of soil movement could affect 
their slope and function and would cause more structural issues, deterioration of the wood 
structures, and maintenance problems, in the future. (R4, tab 34 at 1-2) 
76. Citing contract drawings, Mr. Gerich reported that the balconies/covered 
walkways were effectively integrated into the dormitory structure and that, given the 
anticipated soil heave and that the balcony/walkway system was not designed to move 
independently of the main structure, a common foundation system was required. In his 
opinion a structural designer should not mix different structural systems within a 
structure; use of different foundation types requires isolation joints at the intersection of 
the different systems; and the attachment of the balcony to the building structure would 
undergo severe deformations. The worst scenario would be differential settlement of the 
individual footings, which would damage the balcony and building connection and the 
connection between the exterior balcony columns. Mr. Gerich described in detail the 
potential problems with using spread footings instead of drilled piers for the 
balcony/walkways, including, inter alia, that the entire balcony structure would need to be 
isolated from the building, with enough clearance to prevent interference due to 
settlement and additional footings to support the balconies properly. (R4, tab 34 at 2-4) 
Mr. Gerich acknowledged at the hearing that it was possible, "[ w ]ith a complete 
redesign," to design a separate structure for the balconies that would have allowed 
differential movement between them and the building (tr. 4/82). 
DISCUSSION 
PBS&JC contends that the Corps improperly denied its request to use shallow 
footings under the balconies and exterior walkways, which the contract allowed and was 
not a design deviation, as demonstrated by the Corps' acceptance of a shallow foundation 
at the mail kiosk. Alternatively, the contract was ambiguous as to whether the spread 
footers could be used and it should be construed against the Corps. PBS&JC apparently 
alleges latent ambiguities. Further, the Corps acted arbitrarily and capriciously and 
breached its duty of good faith and fair dealing when it failed to cooperate with PBS&JC 
31 

in its request to use spread footings and to administer the contract in a manner that did not 
hinder or delay performance or increase its cost. 
The Corps responds that the contract was not ambiguous; it expressly required 
deep foundation systems and disallowed shallow footings for the balconies and exterior 
walkways; and the Corps was entitled to strict compliance. The Corps contends that 
PBS&JC's claimed interpretations were not reasonable and it did not rely upon them prior 
to contract award. Lastly, the Corps asserts that it administered the contract reasonably 
and did not breach its duty of good faith and fair dealing. 
Regarding contract requirements for foundations, the GTR stated that the 
contractor's foundation and pavement designs were to comply with the RFP's and GTR's 
requirements and that specific requirements were in GTR § 5.f. That section, 
"Requirements for the Design-Build Contractor's Foundation and Pavement Design 
Analysis," stated under~ (I), "Recommended Foundation System(s)," that a reinforced 
concrete straight-shaft drilled pier foundation system "shall be utilized" and the 
contractor "shall design the straight-shaft drilled piers" in accordance with the GTR 
(finding 49). GTR § 5.b, "Foundation Design Considerations, Recommendations, and 
Requirements," stated that a "shallow foundation system" of "reinforced concrete 
continuous and/or spot spread footings" was "not considered to be a viable alternative" 
and "shallow footings" were "not allowed" (finding 50). 
The GTR § 5.d(I) exception at issue applied only to covered pavilions and "any 
other small (::;500 GSF) support-type structures" (finding 51). It thus equated covered 
pavilions with "other" small 
support-type structures, all of which had to be equal or less 
than 500 gsf. We have found that 
the balconies and covered walkways were not under 
500 gsf, did not qualify for the small structure exception, and that the DOR's and 
Mr. Rose's propositions at the hearing that the balcony system could be akin to a covered 
pavilion and small support structure were unreasonable (finding 73). 
PBS&JC's actions confirm that it interpreted the RFP to require a deep foundation 
system when it submitted its accepted proposal and for a long time after contract award. 
After some initial confusion on its part as to whether exterior balconies were required, 
PBS&JC incorporated exterior balconies into its design prior to contract award (findings 
53, 54). The accepted proposal design showed a foundation based upon drilled concrete 
piers-a deep foundation system (finding 55). PBS&JC alleged in its claim that, in its 
re-design, its engineers had "inadvertently added drilled piers to the exterior walkways," 
but there is no evidentiary support for the claim of inadvertence (finding 69). PBS&JC's 
interim design submittal of 30 November 2009 and designer Kleinfelder's 9 December 
2009 report, both post-contract award, each depicted balconies and 
covered walkways 
supported on screw piles, another deep foundation system. Kleinfelder's 26 April 2010 
report recommended a straight shaft drilled pier foundation system, did not propose a 
32 

shallow foundation system for any of the project work, and its design drawings showed 
balconies and covered walkways supported by concrete piers. (Findings 55-57) 
Kleinfelder' s 2 June 2010 geotechnical engineering study mentioned the 
possibility of spread footing foundations for the first time, stating it understood they 
would be used at select locations, and that they could be used on a proper subgrade. 
However, the report also stated that the soil's estimated vertical movement was "greater 
than what most structural engineers consider acceptable for a shallow foundation system," 
repeated the drilled piers recommendation in the 26 April 2010 report, and contained 
drawings showing balconies and covered walkways on concrete piers. (Finding 58) 
PBS&JC's finalized July 2010 drawings again depicted concrete drilled piers under the 
covered walkways and 
balconies (findings 58, 59). It was not until 14 October 2010 that 
PBS&JC submitted a "Design Modification Request" to remove drilled piers at the 
exterior balconies and replace them with spread footers (finding 61 ). 
In sum, it is apparent that the contract did not allow the use of shallow spread 
footings under the exterior balconies and walkways, and that is how PBS&JC interpreted 
it for much of the contract performance period. 
Regarding PBS&JC's alternative ambiguity argument, a contract provision is 
ambiguous only if it is susceptible of more than one different, reasonable, interpretation. 
Metric Constructors, Inc. v. NASA, 169 F.3d 747, 751 (Fed. Cir. 1999); Edward R. 
Marden Corp. v. United States, 803 F.2d 701, 705 (Fed. Cir. 1986). While we have found 
the Corps' interpretation of the exception allowing shallow foundations for small 
structures to be the only reasonable one (finding 73), even if we were to assume that there 
is another reasonable interpretation, PBS&JC cannot recover because any ambiguity 
would be patent and it failed timely to inquire about it. A patent ambiguity is one that 
would be apparent to a reasonable person in the claimant's position. In such a case, the 
contractor has a duty to inquire of the government about the provision's meaning before it 
submits its bid or proposal. The issue of whether a contractor's particular interpretation is 
reasonable is reached only if the ambiguity is not patent. Lockheed Martin IR Imaging 
Systems, Inc. v. West, 108 F.3d 319, 322 (Fed. Cir. 1997); Newsom v. United States, 676 
F.2d 647, 649 (Ct. Cl. 1982); Dick Pacific/GHEMM, JV, ASBCA Nos. 54743, 55255, 
09-2 BCA if 34,178 at 168,965. 
PBS&JC knew, prior to its final proposal submission, and before contract award, 
that the contract included exterior balconies (finding 54). PBS&JC's alleged 
interpretations and ambiguities advanced at hearing or in briefing are strained. It alleges 
that there are ambiguities to the extent that any of the relevant contract provisions 
contained the words "recommended" or "recommendations" as well as "requirements" 
(see findings 49, 50), or that the 500 psf reference in the shallow foundation exception 
could be read not to apply to covered pavilions, or not to apply when individual column 
33 

sections were under 500 gsf (see findings 51, 52 ). However, any such alleged 
ambiguities were obvious. PBS&JC should have timely raised them and it did not 
(finding 57). Therefore, the alleged ambiguities are resolved against it. P.R. Burke Corp. 
v. United States, 277 F.3d 1346, 1355 (Fed. Cir. 2002). Because the ambiguities alleged 
by PBS&JC were patent, we do not reach any latent ambiguity arguments. 
With respect to PBS&JC's contention that the Corps acted arbitrarily and 
capriciously in denying its request to use spread footings under the exterior balconies and 
covered walkways, the Corps' actions were sanctioned under the contract. It required that 
the contractor obtain the government's concurrence for any proposed revision to the 
approved design before proceeding, and the government reserved the right to disapprove 
any design revision that deviated from contract requirements. (Finding 47) 
PBS&JC alleges that the spread footings change was not a deviation from contract 
requirements and notes that the Corps allowed 
spread footing foundations under the mail 
kiosk, without any contract modification. However, the mail kiosk was a single story of 
qualifying small size, which PBS&JC in essence made a separate structure. (Finding 66) 
Although Mr. Gerich acknowledged that it was possible to design a separate structure for 
the balconies that would have allowed differential movement between them and the 
building, this would have required a complete redesign (finding 76). Moreover, while the 
requirement for drilled piers under the balconies "'nd walkways could 
have been more 
than was necessary for load-bearing purposes, the main reason for using drilled concrete 
piers at Fort Hood was its expansive soils. Balconies with spread footings would tend to 
move a lot more than the rest of the structure to which they were tied. Mr. Rose of 
Kleinfelder acknowledged that a drilled pier foundation system is less likely to move than 
a shallow supported foundation. Expert Mr. Gerich confirmed that drilled piers were 
used to minimize movement within poor soils, such as those in the local Texas area, and 
that spread footings would move. (Findings 62, 74, 75) 
The Corps was entitled to compliance with its specifications and the approved 
design, and saw no benefit to it in changing. It was not obligated to approve a change, 
particularly such a significant one, advanced by PBS&JC for the first time relatively late 
in the project. (Findings 57, 61, 68) Thus, the Corps did not act arbitrarily and 
capriciously in denying PBS&JC's request to use spread footings under the balconies and 
covered walkways. 
Somewhat intertwined with its contentions that the Corps acted arbitrarily and 
capriciously, PBS&JC further alleges that the Corps breached its duty of good faith and 
fair dealing and its duty not to hinder or delay contract performance by failing to 
cooperate with it in its request to use spread footings. PBS&JC particularly stresses the 
Corps' alleged refusal to allow it to confer with a Corps structural engineer. 
34 

The duties to cooperate and not to hinder have been treated as aspects of the duty 
of good faith and fair dealing. Metcalf Construction Co. v. United States, 742 F.3d 984, 
991 (Fed. Cir. 2014). Government officials are presumed to act in good faith and it takes 
clear and convincing evidence to prove otherwise. Road and Highway Builders, LLC v. 
United States, 702 F.3d 1365, 1368-69 (Fed. Cir. 2012). In Metcalf, the court of appeals 
discussed governmental breach of the duty of good faith and fair dealing in terms of acts 
or omissions that, while not expressly proscribed by the contract, are inconsistent with its 
purpose and deprive the other party of the contract's contemplated value. 742 F.3d at 
991; accord Century Exploration New Orleans, LLC v. United States, 745 F.3d 1168, 
1179 (Fed. Cir. 2014). The court recently summarized: 
Every 
contract implicitly contains a covenant of good 
faith and fair dealing, keyed to the obligations and 
opportunities established in the contract. The covenant 
imposes on each party a "duty not to interfere with the other 
party's performance and not to act so as to destroy the 
reasonable expectations of the other party regarding the fruits 
of the contract." 
Lakeshore Engineering Services, Inc. v. United States, 748 F.3d 1341, 1349 (Fed. Cir. 
2014) (citations omitted). 
PBS&JC stated in its 14 October 2010 request to change its approved design in 
order to use shallow spread footings under the exterior walkways and balconies, rather 
than deep foundation concrete 
drilled piers, that it would provide complete details and 
design calculations. There is no evidence that it did so. (Finding 61) The Corps notified 
PBS&JC that its Geotechnical Section had disallowed the change. While, at first, it stated 
that there was no need for PBS&JC 
to speak directly to the Section, the Corps later 
arranged for a meeting if PBS&JC so wished. PBS&JC declined because it felt a 
structural 
issue was involved and it was well underway with the drilled piers at the time. 
(Findings 63, 64) We found that PBS&JC did not substantiate its contention that the 
Corps refused to allow 
it to confer with a structural engineer concerning its spread 
footings request and we found no evidence that the Corps acted in any way to hinder or 
delay PBS&JC or to deprive it of the value of the contract (finding 65). 
In sum, there is no evidence that the Corps' actions were in any respect tantamount 
to a breach of its duty of good faith and fair dealing. 
35 

DECISION 
BALCONY PIERS CLAIM - ASBCA No. 57964 
We deny the appeal. 
CONCLUSION 
ASBCA Nos. 57814 and 57964 are denied. 
Dated: 25 July 2014 
I concur 
~~44 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
dministrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
---------
OWEN C. WILSON 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the Armed 
Services Board of Contract Appeals in ASBCA Nos. 57814, 57964, Appeals of PBS&J 
Constructors, Inc., rendered in conformance with the Board's Charter. 
Dated: 
36 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals