GRANTED: March 31, 2011 
CBCA 975 
IN-FINN-ITY GEOTECH SERVICE, 
Appellant, 
v. 
DEPARTMENT OF THE INTERIOR, 
Respondent. 
Richard M. Hughes, III, Kingston, PA, counsel for Appellant. 
Tara D. Campbell, Office of the Solicitor, Department of the Interior, Pittsburgh, PA, 
counsel for Respondent. 
Before Board Judges GILMORE , DRUMMOND , and STEEL . 
DRUMMOND , Board Judge. 
This appeal arises out of contract S07PC00005 (contract) between In-Finn-Ity 
Geotech Service (IGS) and the Department of the Interior, Office of Surface Mining 
Reclamation and Enforcement (OSM) for reclamation work in Pittson, Pennsylvania. IGS, 
alleging breach of contract and change, seeks $98,523.47 for removing excess grout under 
the contract, plus attorney fees, interest, and costs. OSM disputes IGS’s entitlement to 
claimed costs. 
A hearing was held in Wilkes-Barre, Pennsylvania. The record includes the pleadings, 
appeal file, hearing transcript, and parties’ post-hearing briefs. For the reasons stated below, 
IGS’s claim is granted. 

 
          
               
               
               
           
                  
                  
                    
                
                
            
           
                
        
             
                 
                 
              
                
   
         
                 
            
        
            
                
              
               
                
             
            
  
2 CBCA 975 
Background 
On October 26, 2006, OSM issued a solicitation for reclamation work referred to as 
the Mill Street Subsidence Phase 2 Project (Mill Street Project). Appeal File, Exhibit 3 at 
1, 7. The solicitation specifications sought a contractor to drill and grout fill voids (open 
areas) created by mine subsidence in Pittson, Pennsylvania. Id. at 1, 44, 45. 
The solicitation specifications singled out for special attention the conditions at the 
project area. Appeal File, Exhibit 3 at 44. Section 1 of the statement of work described the 
site as located “below the collapsed base of the sewer line . . . located in the centerline of 
Mill Street . . . .” Id. The sewer line was approximately four feet three inches in height and 
egg-shaped with a flat bottom. Transcript at 153. It was constructed of concrete and bricks 
and badly fractured and cracked. Id. at 26, 152. The specifications also warned about the 
subsurface conditions. The specifications stated that the “stability of the overburden and 
bedrock surrounding the project area is unknown and cannot be considered competent.” 
Appeal File, Exhibit 3 at 45. The voids beneath the sewer line ranged from seventeen feet 
to twenty-eight feet in depth. Id. at 44. 
The specifications called for two distinct areas for drilling and grouting. The area 
beneath the sewer line was to be drilled and grouted first to provide a subbase for the sewer 
line. Appeal File, Exhibit 3 at 53, 57. Following the creation of a subbase, a separate 
contractor would install an inflatable sleeve or bladder inside the sewer line, and then IGS 
would pour additional grout into the boreholes to fill the area on the sides of the sewer line. 
Id. at 60. 
The specifications required the successful contractor to drill “[a]pproximately twenty 
boreholes . . . in three subsurface void areas.” Appeal File, Exhibit 3 at 45. The 
specifications did not specify any particular locations for the boreholes. Rather, the 
specifications included a Drilling and Preparation of Boreholes clause which states that the 
“COR [contracting officer’s representative] will determine in the field [the] layout of the 
grout holes.” Id. at 53. The specifications also included a Grouting to Provide a Subbase 
clause which states that IGS will “monitor the elevations of the fill material (grout) during 
placement, so that the material does not interfere with (or migrate into) the sewer line that 
the City will replace.” Id. at 57. The specifications, however, did not mandate any particular 
method of monitoring the sewer line for grout migration. During performance, IGS planned 
to use various methods, including a camera underground, to monitor for grout migration. 
Transcript at 58-59. 

 
             
       
               
                
            
               
               
               
             
             
              
              
             
           
             
            
        
                
          
               
             
                  
   
        
           
         
          
                 
           
      
           
 
3 CBCA 975 
On October 27, 2006, OSM conducted a pre-bid conference on the Mill Street Project. 
1 2Among the attendees at the conference was Mr. William Finn , the owner of IGS .  Appeal 
File, Exhibit 1 at 1. OSM was represented at the pre-bid conference by Mr. Bill Lever, the 
3contracting officer (CO), and Mr. David Philbin, the COR . Id. at 1-2, 5; Transcript at 10-12, 
17. During the pre-bid conference, Mr. Philbin warned prospective contractors about the 
poor condition of the sewer line and reviewed the layout plan for the project which showed, 
the anticipated locations of the boreholes on either side of the sewer line. Appeal File, 
Exhibit 3 at 69; Transcript at 77, 152-54. OSM has offered no evidence that drilling 
boreholes in locations other than depicted by the layout plan was discussed during the 
conference. After reviewing the layout plan and the specifications, Mr. Finn testified that 
IGS anticipated drilling all boreholes around the sewer line. Transcript at 14-15, 17. 
On November 7, 2006, OSM awarded to IGS the contract for the Mill Street Project. 
Appeal File, Exhibit 3. The contract included the solicitation specifications and layout plan. 
Id. The contract also incorporated by reference certain Federal Acquisition Regulation 
(FAR) clauses, including FAR clause 52.233-1, Disputes (Jul 2002) - Alternate I; FAR clause 
52.233-4, Applicable Law For Breach of Contract Claim (Oct 2004); and FAR clause 
52.243-5, Changes and Changed Conditions (Apr 1984). Id. 
IGS arrived at the site on November 14, 2006. Appeal File, Exhibit 5. IGS’s work 
was monitored by Mr. Philbin and OSM’s inspection services contractor, Valenti 
Construction Company (VCC). Id., Exhibit 3 at 10. Together Mr. Philbin and Steve 
Valenti, the primary inspector for VCC, directed the technical aspects of the Mill Street 
Project. Id., Exhibits 3, 13; Transcript at 90-91, 165. Only Mr. Valenti was on site daily, and 
he prepared daily logs, diaries, and reports throughout the course of the project.  Transcript 
at 132-33, 165; Appeal File, Exhibits 5-9. 
1 Mr. Finn testified that he has over fifty-eight years’ experience in the 
subsurface investigation and drilling industry.  Transcript at 11. 
2 IGS is a small, three-man company specializing in subsurface investigation and 
drilling started by Mr. Finn in 1994. Transcript at 10-12. Mr. Finn testified that IGS had 
performed over twenty-five surface investigation and drilling contracts for OSM before this 
contract. Id. at 11-12,15. 
3 Mr. Philbin testified that he had worked on approximately fifty drilling and 
grouting projects. 

 
           
               
               
          
                   
                
               
             
              
            
             
              
              
               
                 
                
    
        
                   
                  
                   
               
     
   
             
               
                
    
                 
            
  
                 
             
              
             
4 CBCA 975 
Mr. Valenti’s daily diaries document that IGS performed the initial drilling and 
grouting work between November 16 and November 28, 2006. Appeal File, Exhibit 5 at 7-8. 
The daily diaries for this period do not document any problems with IGS’s performance. Id. 
On December 12, 2006, the sewer contractor discovered approximately fourteen yards 
of grout in the sewer line near borehole 11M. Appeal File, Exhibit 12 at 1. IGS took the 
position that OSM was responsible for the costs to clean up the grout because it had ordered 
borehole 11M to be drilled through the sewer line. Appeal File, Exhibit 14. OSM 
acknowledges, the contract gave the COR discretion to select the locations for the boreholes. 
We find that under the specifications OSM had discretion to decide the locations for the 
boreholes during construction and selected the location for borehole 11M. 
IGS also took the position that OSM breached the terms of the contract by directing 
the only methods that it would permit IGS to use for monitoring and was therefore 
responsible for the cleanup costs. Mr. Finn testified that OSM interfered with IGS’s efforts 
to properly monitor the sewer. Transcript at 38-50. The contract gave IGS discretion to 
decide how to monitor the sewer. Appeal File, Exhibit 3 at 57. Mr. Philbin admitted during 
the hearing that he only authorized IGS to use an aluminum rod and weighted tape to monitor 
the sewer.  Transcript at 184-85. Mr. Finn testified that both methods were ineffective and 
hampered IGS’s ability to monitor the sewer line around borehole 11M during the grouting 
phase. Id. at 53, 71. In fact, Mr. Finn stated that during the grouting of borehole 11M the 
aluminum rod only revealed the grout level in the pipe used to add the grout and not the grout 
level in the sewer line itself. Id. at 71. He testified further that unlike the weighted tape and 
aluminum rod, the camera would have allowed IGS to see inside the sewer during the grout 
work and therefore the grout migration problem would have been discovered much earlier. 
Id. at 49-53. 
Mr. Philbin was unable to give any reasonable explanation for his decision to prohibit 
IGS from using a camera to monitor the sewer line for grout migration. On cross-
examination, he admitted that he made a mistake and that the use of a camera would have 
been reasonable under the circumstances of this case and effective in monitoring the sewer 
line. Transcript at 206, 211. We find that Mr. Philbin’s decision to prohibit IGS from using 
a camera to monitor for grout migration was unreasonable and not justified under the terms 
of the contract. 
On May 1, 2007, Mr. Valenti wrote to Mr. Lever to explain how the grout got into the 
sewer line. Mr. Valenti acknowledged that he and IGS had monitored the boreholes 
surrounding borehole 11M during the grout work and no grout was observed in the sewer 
line. He further acknowledged that neither “cameras nor employees were allowed down into 

 
                 
      
               
              
                 
             
              
              
                
        
               
                
           
            
              
                  
               
                
              
                
            
               
               
              
              
             
                  
                 
              
                 
   
  
             
              
5 CBCA 975 
the sewer line” and concluded that “there was no way for us to know that the grout was 
flowing into the sewer line.” Id. 
By letter dated June 4, 2007, Mr. Philbin wrote to Mr. Lever, stating that the location 
of borehole 11M contributed to grout migration problem and in his opinion “the cause and 
responsibility for the blockage is that both are shared.” Appeal File, Exhibit 13 at 1-2. At 
the hearing Mr. Philbin admitted that the opinions stated in the letter were “personal 
opinions” and not based “on the contractual obligations of the contract.” Transcript at 199. 
On July 18, 2007, IGS wrote to Mr. Lever requesting $98,523.47 for the cost of 
removing the grout from the sewer. Appeal File, Exhibit 14. The letter included an invoice 
for the grout removal. Id.  There is no dispute concerning the dollar amount of the invoice. 
On October 3, 2007, Mr. Lever issued a final decision on IGS’s claim for additional 
costs. Mr. Lever noted that the contract required IGS to monitor the grout and acknowledged 
that Mr. Philbin directed IGS to drill through the sewer line and prohibited the use of a 
camera to monitor the sewer. However, he concluded that “[o]ther methods were available 
to properly monitor the elevation of the fill material to ensure that the grout did not migrate 
into the sewer line during grouting without physically placing a worker in the sewer line.” 
Appeal File, Exhibit 16 at 1. He also noted that if “these methods ( i.e. dropping a line or 
measuring rod into the grout pipe) were used, the chance of grouting the sewer line would 
have been minimal.” Mr. Lever finished the letter by advising IGS that its claim was denied. 
Id. There is no dispute concerning Mr. Philbin’s instruction to drill borehole 11M through 
the sewer line and his decision to prohibit IGS from using a camera to monitor the grout 
work. 
During the hearing, Mr. Philbin testified that the grout migration problem was caused 
by IGS’s failure to monitor the sewer line during the grouting work and, therefore, IGS is 
responsible for the cost to remove the grout. Transcript at 182-83. The record includes no 
clear evidence that IGS failed to monitor the sewer line during the initial grouting work. 
Rather, the record shows just the opposite. Mr. Finn testified that IGS took measurements 
using an aluminum rod and Mr. Valenti took measurements using a weighted tape throughout 
the grouting work. Id. at 38-42, 95. Moreover, the daily diaries for this work do not record 
any failures by IGS to monitor the sewer during grouting work. Appeal File, Exhibit 5. We 
do not find Mr. Philbin’s testimony that the grout migration problem was caused by IGS’s 
failure to monitor the sewer line to be persuasive. We find Mr. Finn’s testimony on this issue 
to be more credible. 
In its notice of appeal and complaint, IGS seeks $98,523.47 for removing the excess 
grout. In addition, IGS seeks an unstated amount for interest, costs, and attorney fees. 

 
              
               
           
     
              
           
             
            
         
               
           
               
         
 
            
      
            
             
              
             
             
               
               
           
               
             
               
   
   
               
               
             
       
6 CBCA 975 
Discussion 
IGS alleges that OSM interfered with its performance and is liable for the cost of 
removing grout from the sewer line. OSM responds that IGS failed to properly monitor the 
grouting work and therefore is responsible for the sewer repairs. 
It is well settled that: 
[t]he covenant of good faith and fair dealing is an implied duty that each party 
to contract owes to its contracting partner. The covenant imposes obligations 
on both contracting parties that include the 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. 
Centex Corp. v. United States , 395 F.3d 1283, 1304 (Fed. Cir. 2005). This Board recognizes 
that “[a]n implied covenant of good faith and fair dealing imposes an obligation on the part 
of each party to the contract to act reasonably.” Butte Timberlands, LCC v. Department of 
Agriculture , CBCA 646, 08-1 BCA ¶ 33,730, at 166,994 (2007). 
We are satisfied from the record before us that OSM interfered with IGS’s efforts to 
effectively monitor for grout migration.  Where the contract gives the contractor discretion 
to choose its method of performance, the Government’s rejection of a reasonable method, 
including a change of method after performance begins, entitles the contractor to an equitable 
adjustment. D.W. Sandau Dredging , ENG BCA 5812, 96-1 BCA ¶ 28,064 (1995). The 
contract did not specify any particular method for monitoring the sewer and IGS had 
discretion to choose its method of monitoring the sewer line without interference from OSM. 
OSM was well aware of the poor condition of the sewer and has provided no reasonable 
explanation for its actions. In fact, Mr. Philbin conceded that, in hindsight, IGS should have 
been allowed to use a camera to monitor for grout migration.  We find that use of a camera 
to monitor the sewer line was reasonable under the circumstances of this case. We further 
find that OSM interfered with IGS’s performance by prohibiting IGS from using a camera 
to monitor the sewer for grout migration and therefore should be liable for the costs to 
remove the grout. 
Attorney Fees and Costs 
IGS also argues that it is entitled to attorney fees and costs. Claims for attorney fees 
and costs are considered under the Equal Access to Justice Act, 5 U.S.C. § 504 (2006). 
Applications for attorney fees and costs are made after Board decisions are final, in 
accordance with Rule 30 (48 CFR 6101.30 (2009)). 

 
              
         
                 
              
  
                                               
  
 
 
                                                                                        
    
  
7 CBCA 975 
Decision 
IGS’s claim is GRANTED . IGS is entitled to $98,523.37. As prescribed by the 
Contract Disputes Act of 1978, 41 U.S.C. § 7109 (as codified by Pub. L. No. 111-350, 124 
Stat. 3677, 3825-26 (2011)), IGS is also entitled to interest on this award. Interest is due on 
$98,523.37 from the date on which the contracting officer received IGS’s claim until the date 
of payment. 
JEROME M. DRUMMOND 
Board Judge 
We concur: 
BERYL S. GILMORE CANDIDA S. STEEL 
Board Judge Board Judge