DENIED: December 20, 2016
CBCA 4779
TUCCI & SONS, INC.,
Appellant,
v. 
DEPARTMENT OF TRANSPORTATION,
Respondent. 
J. Craig Rusk and Alix K. Town of Oles Morrison Rinker & Baker, LLP, Seattle, WA,
counsel for Appellant.
Rayanne L. Speakman, Office of the Chief Counsel, Western Federal Lands Highway
Division, Federal Highway Administration, Department of Transportation, Vancouver, WA,
counsel for Respondent. 
Before Board Judges SHERIDAN, WALTERS, and LESTER.  
SHERIDAN, Board Judge.
Tucci & Sons, Inc. (Tucci) appeals the final decision of the Department of
Transportation, Federal Highway Administration (FHWA), denying its claim for an equitable
adjustment in the amount of $81,320.45 for increased labor and equipment costs resulting
from alleged differing site conditions encountered in its performance of utility trench work
in Mount Rainier National Park.  After a hearing on the merits, we deny the appeal because
Tucci was adequately informed by the contract drawings that it was digging in “undisturbed
native material” and that, because of the conditions of the site, it should have anticipated that
it might encounter a variety of different sizes of boulders.


CBCA 4779 2
Background
This appeal arises out a contract to reconstruct a 9.7-mile portion of the roadway in
Mount Rainier National Park from the park’s Nisqually Entrance to Paradise Valley and
install a utility trench in a 6.06-mile length of the road.  The park is located on Mount
Rainier, which is a snow-capped volcano covered by several glaciers.  The glaciers erode
materials which travel down the mountain via gravity and rivers as glacial, alluvial, and mud
deposits containing sands, gravel, cobbles, and boulders.  Beneath those materials is bedrock,
which sometimes breaches the surface of the deposits.  The Board takes judicial notice of
the fact that construction of the Nisqually Entrance to Paradise Valley portion of the roadway
began in 1903 and was completed in 1915.  48 CFR 6101.25(a)(1) (2015); see
http://npshistory.com/publications/highways/mount_rainier/mount-rainier.pdf (an online
park brochure “Highways in Harmony, Mount Rainier Roads and Bridges” that was last
visited Dec. 16, 2016).  The road from Nisqually Entrance to Paradise Valley was one of the
first roads built in a national park.
A. Solicitation
In 2013, the FHWA’s Western Federal Lands Highway Division (WFLHD) solicited
bids for the reconstruction of portions of the roadway from Nisqually Entrance to Paradise
Road and construction of utility trenches within portions of that road.  The utility trench
work was to be performed on the left-hand side of the downhill lane of the two-lane
roadway, the lane that was closer to the mountain.1  
The length of the project spanned approximately 32,700 linear feet, beginning at
station 25+80 and ending at station 346+00.2  The project drawings detailed four types of
utility trenches that the contractor potentially would be constructing for the conduit
installation (Types A, B, C, and D), but the contract generally specified the use of the Type
A trench.  Use of the Type A trench required the contractor to excavate an area two feet
wide (24") by three-and-a-half feet deep (42") and to install conduit at a depth of three feet
(36").  In pertinent part, drawing K-8, “UTILITY TRENCH TYPE A,” showed “undisturbed
native material” outside the trenches, with the Type A trench being backfilled with
approximately twenty inches of bedding material, six inches of backfill material, and four
1 The project was along the Nisqually River, which originates at the Nisqually
Glacier, one of the main glacial drainages on Mount Rainier.
2 The station numbers denote the trench’s distance in feet from the beginning of
Nisqually Road (station 0+00).  Thus, the trenching began 2580 feet from the start of the road
and ended a distance of 34,600 feet away from the entrance.

CBCA 4779 3
inches of aggregate base, and then paved with five inches of minor hot asphalt concrete. 
The plans for the three other types of trenches similarly showed “undisturbed native
material” outside the trenches, and varying amounts of bedding, backfill, and other materials
covering the cables which was then covered by four inches of aggregate base, and paved
with five inches of minor hot asphalt concrete.  Drawing K-8 is the only portion of the
contract that addresses the roadway subsurface, and while it shows where the utility trenches
were to be constructed, it also tells a contractor that there will be undisturbed native material
outside the trenches.
The solicitation noted that there would be no WFLHD-arranged site visits and urged
prospective bidders to inspect the location in which the work would be performed.  With
regard to information concerning the physical conditions of the project area, Federal
Acquisition Regulation (FAR) clause 52.234-4, Physical Data, 48 CFR 52.234-4 (2012), was
included in the contract and advised:
Data and information furnished or referred to below is for the Contractor’s
information.  The Government shall not be responsible for any interpretation
of or conclusion drawn from the data or information by the Contractor.
(a) The indications of physical conditions on the drawings and in the
specifications are the result of site investigations by: N/A.
. . . .
(d)  Geotechnical data, subsurface investigation information, and design data,
consisting of the following, may be obtained upon request. . . .
(1)  Geotechnical Memo – GM 24-13, Nisqually to Paradise Road, PH
1; Rickseeker Point Loop Road M[echanically] S[tablized] E[arth] Wall
(2) Storm Water Pollution Prevention Plan (SWPPP)
Tucci learned about the solicitation while its project superintendent, Mr. Daniel
Nelson, was working on another WFLHD project involving road reconstruction, pavement
repair, storm culvert replacements, and asphalt overlays on Stevens Canyon Road, also within
Mount Rainier National Park.  Tucci is a family-owned business that has provided roadway
construction, asphalt paving, earth moving, and underground utilities installation services
for several years.  Tucci rebuilt a ten-mile stretch of road leading to Mount Rainier National
Park for the Washington State Department of Transportation.  Several years earlier, Tucci
built a section of road for the FHWA on Skate Creek Road, although it is not clear whether
the section was in or near Mount Rainier National Park.  Tucci built parking lots at Crystal

CBCA 4779 4
Mountain Ski Resort “on the other side of the mountain,” and has built roads in the Puget
Sound area and along river banks “in terrain that is very similar to this.” 
In preparation of its estimate, Tucci’s president, Mr. Mike Tucci; Mr. Nelson; and
Tucci’s chief estimator jointly conducted a site investigation of the project area in October
2013.  Mr. Nelson described the roadway as a “two-lane kind of country road in relatively
rough shape in need of some repair and overlay work.”  During the visit, the group assessed
the full length of the roadway and concluded that logistical issues (truck and equipment
staging, as well as traffic control) had the most potential to affect the project.  The group also
surveyed the general physical conditions of the site and observed cobbles and boulders along
the roadside.  Both Mr. Nelson and Mr. Tucci testified3 that the surface features they noticed
along the project area, particularly the presence of boulders, were of less concern in their
estimate because such conditions were not “necessarily indicative” of what lay beneath the
roadway.  As each explained, the presence of boulders did not raise concerns because they
could have been purposefully placed by a prior contractor for aesthetic reasons (as Tucci
itself had been required to do on the Stevens Canyon project) or were there as a result of
natural occurrences.  The Tucci officials further testified that, in their experience, they would
not ordinarily expect to encounter boulders within a “roadway prism” at the depths at which
the utility conduits were required to be installed.4  Mr. Nelson stated that he does not rely on
the observed conditions of an area as an indicator of subsurface conditions and instead relies
on geotechnical reports because they “are explicit to the defined boundaries of the contract
work.”  
During the bid process, Tucci requested and received from the FHWA the
geotechnical memorandum (GM 24-13) noted in the Physical Data clause.  The information
contained in GM 24-13, however, was unrelated to the utility trench work at issue and instead
concerned another portion of the project, for the construction of a mechanically stabilized
earth wall, located between six and seven miles away and at an elevation 2000 feet higher
than the trenching area.  According to Mr. Nelson, this report did not provide any useful
information relative to the trench excavation and was not used in preparation of Tucci’s bid. 
There is no evidence in the record that Tucci requested from WFLHD any other information
specific to the utility work in preparation of its bid. 
3 Tucci’s chief estimator did not testify at the hearing. 
4 According to Mr. Nelson, a roadway prism is “everything from top surface
elevation of the road down to subgrade,” including the asphalt section which he estimated
to be about six inches in depth, the crushed rock section also estimated to be about six inches,
and below that some sort of borrow material.  He opined that a roadway prism would extend
multiple feet below a roadway’s top surface.

CBCA 4779 5
Tucci’s proposal for the entire contract totaled $10,099,717.87, which included
$1,414,275 for the utility trench work, priced at $43.25 per linear foot.  Tucci did not include
in its bid any estimate for equipment capable of breaking or excavating boulders or bedrock. 
B. The Contract
On December 30, 2013, Tucci was awarded a fixed-price contract,
DTFH7014C00004, for the Nisqually Entrance to Paradise Road project in the amount of
$10,099,717.87.  The contract included various drawings, including the aforementioned
drawing K-8.  The contract contained the standard Differing Site Conditions clause, FAR
52.236-2 (Apr. 1984), which provides as follows:  
(a)  The Contractor shall promptly, and before the conditions are disturbed,
give a written notice to the Contracting Officer of (1) subsurface or latent
physical conditions at the site which differ materially from those indicated in
this contract, or (2) unknown physical conditions at the site, of an unusual
nature, which differ materially from those ordinarily encountered and generally
recognized as inhering in work of the character provided for in the contract.
(b)  The Contracting Officer shall investigate the site conditions promptly after
receiving the notice.  If the conditions do materially so differ and cause an
increase or decrease in the Contractor’s cost of, or the time required for,
performing any part of the work under this contract, whether or not changed
as a result of the conditions, an equitable adjustment shall be made under this
clause and the contract modified in writing accordingly.
The contract also included FAR clause 52.236-3, Site Investigation and Conditions
Affecting the Work, which, in relevant part, provides:
(a)  The Contractor acknowledges that it has taken steps reasonably necessary
to ascertain the nature and location of the work, and that it has investigated
and satisfied itself as to the general and local conditions which can affect the
work or its costs, including but not limited to: . . . (4) the conformation and
conditions of the ground; and (5) the character of equipment and facilities
needed preliminary to and during work performance.  The Contractor also
acknowledges that it has satisfied itself as to the character, quality, and
quantity of surface and subsurface materials or obstacles to be encountered
insofar as this information is reasonably ascertainable from an inspection of
the site, including all exploratory work done by the Government, as well as
from the drawings and specifications made a part of this contract.  

CBCA 4779 6
The contract incorporated the FHWA’s Standard Specifications for Construction of
Roads and Bridges on Federal Highway Projects FP-03 U.S. Customary Units (the FP-03). 
The FP-03 contains standard specifications issued by the FHWA for construction of roads
and bridges on federal highway projects “under direct administration” of the FHWA, and
“when designated in a contract the FP-03 becomes part of the contract and binding upon all
parties to the contract.”5  Although it was incorporated into the contract, WFLHD did not
represent that the road had been constructed according to the FP-03 specifications.  Neither
party presented compelling evidence as to whether or to what extent the FP-03, or any other
construction standards, were used in constructing the road in issue here.  We did not find the
FP-03 specifications particularly applicable in resolving this dispute.
Following award, Tucci submitted a preliminary work plan providing a narrative of
the activities for the first forty-five days following the notice to proceed.  Tucci’s plan
indicated that it intended to perform at a rate of 800 linear feet per day from March 10
to May 30, 2014, with conduit installation to be performed by its subcontractor, Mill Plain
Electric.  The plan further provided:
A crew of approximately seven employees, 4 solo dump trucks, excavator,
backhoe, and loader and water truck will perform trenching and backfill work. 
A crew of 2-3 employees of the electrical subcontractor will install conduit, set
vaults and pull wire as work progresses.  The duration noted in this plan is
based on the work of one crew.  Should project conditions and other outside
Contractor workload provide an opportunity to do so, a second crew may be
added, thus doubling production rate for this work.
C. Performance
Tucci received the notice to proceed on March 3, 2014.  On its first day of
performance, March 13, 2014, Tucci encountered subsurface obstructions that it claims
impeded excavation of the utility trench.  Mr. Nelson described the obstructions as
“boulders” and conveyed to WFLHD their impact on the work:
It put[ ] the work at a standstill.  When we are excavating per plan, moving
along, when we first encounter something like this . . . first off we have to
stop, try and determine the extent to which we’re going to encounter
5 It appears from the FP-03’s preface that an earlier version of the FP-03 was
issued in 2003.  No evidence was introduced as to whether or what standard specifications
were in place when the road was originally built.

CBCA 4779 7
something like this.  Is it something . . . that can be excavated?  Is it something
that we can break up and excavate?  So we spend some time trying to
determine the limits.
If it turns out that it looks like . . . large nested boulders or a very large boulder
or something that we’ve got a potential of . . . trying to fish out of the trench
line, then we begin working on that, and we can’t do anything else until we get
that boulder out of the way.
If it is determined that it’s . . . something like this that appears to be . . . so
large that we don’t have a chance of using our excavator, we have to move our
excavator out of the way, go get our breaker,[6] track that over to the
excavation, start breaking it apart.  That takes whatever time it does until we
can get down to our plan elevation for trench, track [the breaker] back out of
the way, get our excavator back over to the excavation location.
And again just as a reminder, this is all happening on a narrow, two-lane road. 
All of my equipment is in a line in the lane that I’m working in, so every time
I’m moving one of those pieces of equipment I’m waiting for traffic to go by. 
I’m pulling the excavator out and around, back in.  Traffic goes by again.  So
it takes some time to get this done.
Once we get the excavator back to the hole we excavate out the rubblized rock,
get that sent out, and in the meantime while this has been performed . . . our
solo dump trucks have just been standing there because we’re working on
getting them some material broken up to haul off.  
Our backfill crew typically works . . . reasonably close to our excavation crew,
so while this is occurring they’ll catch up to the excavation and they’ll stop. 
Then once our excavation starts again we can finally make some progress
excavating.  Then we have to bring back some sand bed and get that laid in,
wait for our electrical subcontractor to have them lay out the conduits and get
that far enough ahead, and then we’ll finally start backfilling again. 
6 Mr. Nelson described a breaker as a piece of equipment, much like a large
jackhammer, which attaches to the excavator and uses hydraulic pressure to turn the rock into
rubble.

CBCA 4779 8
So our backfill ends up taking the same amount of time being down as our
excavation does, and each specific boulder, obstruction, ledge rock that we run
into halts everything. We’ve got to stop, regroup and then continue on.
Mr. Nelson testified that his use of the term “boulders” referred to any obstruction eighteen
inches in diameter or larger.  In contrast, he identified a “cobble” as anything between three
and twelve inches in diameter.  According to Mr. Nelson, cobbles did not negatively impact
the excavation and were not a part of Tucci’s claim. 
Tucci’s on-site foreman, Mr. Randy Schiemer, similarly testified that as each
obstruction was encountered, the crew would determine the extent of the obstruction and
attempt to remove it with the excavator.  If that was not possible, a hydraulic rock breaker
was then brought to the location and used to break up the boulder.  Once the boulder was
broken, the rock breaker was returned to the holding site and the excavator moved back to
the work line to continue removing the broken rock and other materials.  Mr. Schiemer stated
that this process was not required when the crew encountered cobbles. 
By letter dated March 13, 2014, Mr. Nelson notified WFLHD of the conditions
encountered and their effect on the utility excavation:
This letter serves to inform you of a differing site condition encountered today
during the utility trench excavation.  During the course of the work, numerous
large boulders have been encountered which drastically slow and potentially
inhibit the installation of the proposed utilities on the project.  The unusual size
and concentration of the obstructions was unanticipated at the time of bid. 
Tucci & Sons, Inc. will track the additional costs and time associated with this
condition.
Tucci created an additional cost code for its daily reports, code 9010,7 to track the labor and
equipment costs associated with each instance boulders purportedly impacted the project. 
All of Tucci’s labor and equipment costs for March 13 were listed under the 9010 cost code. 
WFLHD’s on-site project engineer, Mr. Marty Flores, responded to Tucci’s notice on
March 14, 2014.  Mr. Flores disagreed that Tucci had encountered a differing site condition
and requested that Tucci provide additional information if it wished to pursue a differing site
conditions claim. 
7 Ordinary contract work (i.e., unobstructed trenching) was designated 7300.  

CBCA 4779 9
As it performed, Tucci documented in its daily reports each day that it claimed it
encountered boulders.  Tucci did not, however, physically measure each obstruction it
removed; instead, anything that “stopped [Tucci] from digging” was noted as an impact for
purposes of its claim.  Similarly, Tucci did not record the depth at which any particular
obstruction was encountered.  On March 25, Tucci added a second utility trench crew to
increase production.  Although it had estimated eighty days for the work, Tucci completed
the work in fifty-three days, on May 6, 2014. 
On June 4, 2014, Tucci submitted to Mr. Flores a letter stating that it believed the
unusual size and frequency of the obstructions it encountered during performance constituted
a Type II differing site condition.  Included with the letter were daily reports for the twenty-
three days on which boulders were encountered as well as summaries of the increased labor
and equipment costs associated with their excavation.  In total, Tucci sought $78,942.68 in
increased costs.  In a second letter to Mr. Flores, dated October 30, 2014, Tucci provided
documentation supporting an additional impact due to an obstruction encountered on July 24
and revised its incurred costs to $81,320.45.8  Mr. Flores responded to Tucci’s letter alleging
a differing site condition by letter dated November 17, 2014.  Mr. Flores indicated that the
evidence Tucci provided did not support its claim and that, if it wished to pursue the matter
further, it should seek a contracting officer’s final decision. 
On February 23, 2015, Tucci requested a final decision on its differing site condition
claim9 and asserted, for the first time, that it had encountered a Type I differing site
condition.  With respect to its Type I claim, Tucci alleged that because the Type A trench
required excavation to a depth of 42" (or, using the Type D trench, to a depth of 24" inches
where the minimum depth could not be achieved), the contract represented that Tucci would
be able to achieve, at a minimum, a depth of 24" unobstructed.  Since its crews at times
encountered obstructions above the minimum depth of 24" inches, Tucci concluded the
boulders were a differing site condition.  By final decision dated April 16, 2015, WFLHD
denied Tucci’s claim.   
8 Although the subject of the letter is “Trench Obstructions, Differing Site
Condition REVISED,” the July 24 obstruction was encountered after the completion of the
utility trench work. 
9 WFLHD states that Tucci formally requested a final decision by letter dated
December 2, 2014, but failed to state a sum certain.  WFLHD acknowledges that the sum
certain amount was included in Tucci’s October 30, 2014, and February 23, 2015,
correspondence. 

CBCA 4779 10
D. Other Relevant Materials and Hearing Testimony
1. Draft Geotechnical Report 04-11 (GR 04-11)
Tucci timely appealed the final decision to the Board on June 4, 2015.  During
discovery, Tucci obtained from WFLHD the final draft of a geotechnical report, GR 04-11,
dated May 2013, containing design and construction information for the “resurfacing,
rehabilitation, and restoration” of the road from the Nisqually Entrance to Paradise Road. 
WFLHD did not include the GR 04-11 report with the contract documents.10 
The report indicates that in 2009, WFLHD conducted subsurface investigations and
obtained eighteen subgrade boring samples, taken from the travel lanes of the roadway
approximately every half mile from locations within the utility trench project limits,11 to
assess, among other things, “subgrade conditions within the road prism[.]”  None of the
borings indicated boulders or bedrock at a depth above five feet.12  However, in pertinent
part, the report summarized the results of the study and noted that three of the subgrade
borings encountered refusal:
Boring depths in the eighteen subgrade holes ranged from 2.0 feet in boring
NQSG09-36 to 5 feet, with the majority of the holes drilled to 5 feet.  Fifteen
of the subgrade borings were advanced to the full 5 foot depth and three met
refusal above 5 feet. . . . In the holes where refusal was encountered, possible
tightly nested cobbles, boulders, or bedrock may be present.
(Emphasis added.)  The report stated: “Refusal was encountered in three of the subgrade
holes (NQSG09-36, NQSG09-38, and NQSG09-42, at 2.0, 3.83, and 3.33 feet, respectively,
10 Mr. Brian Minor, WFLHD’s lead designer for the Nisqually to Paradise Road,
Phase I project, who prepared the project plans and specifications, stated that the GR 04-11
report was excluded from the solicitation because the information it contained was not
pertinent to the utility trench work.  Mr. Minor explained that, as originally contemplated,
the project envisioned a broader scope of work for repair and rehabilitation of the full twelve
miles of the Nisqually Entrance to Paradise Road corridor; however, due to budgetary
constraints, the work was segmented into three phases, the first of which included the subject
utility trench construction.  It was Mr. Minor’s decision, due to the reduced scope of work,
not to include GR 04-11 with the solicitation documents. 
11 The samples were taken between stations 1+50 and 324+80. 
12 The utility trench depth was only 42". 

CBCA 4779 11
indicating that nested cobbles, possible boulders, or bedrock may be present.”  The report
later indicates that a fourth boring, NQSG09-33, met refusal at a depth of four feet.  The
report classified “boulders” as twelve inches in diameter or larger and “cobbles” as between
three and twelve inches in diameter, and provided:
Due to the partial bench and sidecast construction methods that were originally
used to construct many sections of the project, it would not be unusual to
encounter large cobbles to small to medium boulders-sized materials and large
woody debris through some road sections during excavation, especially in the
rock cuts.  That said, in some instances the N-values shown in the boring logs
were likely influenced by the presence of course gravel, cobbles, or boulders,
which would tend to overstate the strength of the subsurface materials.  
The majority of the borings on the project did not encounter bedrock. . . . It is
generally understood that the materials and conditions encountered in the
borings should only be considered to be representative of the subsurface
condition and materials encountered in the location of the borehole at the time
of drilling.  Subsurface groundwater conditions and material or depth at which
a given material or groundwater is encountered can vary between, or closely
beyond, borehole locations. 
Mr. Nelson and Mr. Tucci each testified that the GR 04-11 report was material to
bidding the utility trenching project and had they received it prior to bidding, it would have
led them to believe that there might have been obstructions in the roadway that would have
impeded Tucci’s ability to achieve its planned production rate.  Tucci’s witnesses also
maintained that, had they received the GR 04-11 report prior to bidding, they would have
altered the bid to account for the possibility of encountering difficult trenching.  
The record indicates that during performance Tucci did not meet refusal when
excavating in the same areas from which the above-noted borings were taken, and that none
of the impacts for which Tucci seeks damages occurred during the days it performed in the
boring areas. 
2. Roadway Construction
The contract did not mandate the use of any particular construction techniques.  As
already noted, the road was constructed using partial bench and sidecast construction
methods, a fact that was not addressed in the contract.  Mr. Flores described partial bench
and sidecast construction methods on mountainous terrain:

CBCA 4779 12
[W]hatever material is on the cut side of the road is usually blasted, excavated,
dug out, removed, and placed over in the fill side of the road to create a level
bench.  So what you excavate and see here is normally what you find over
here [on the other, built-up side of the road].  So we’ve only removed this
chunk of rock.  And then, in this area, we’ll have . . . to build the road up
[with] fill.  It’s going to be rock or it’s going to be dirt or whatever we have
to create this level bench.  
But the point is here it’s a basic cut-fill section.  Material from the cut side of
the road is moved to the fill side of the road.  We only cut to the road level
and maybe six inches . . . if we need to, or [if] by spec[ification] we’re
supposed to go six inches below that solid rock, and put in some smaller
material.  
So, within a very small distance of the surface of the roadway, you can
encounter bedrock or boulders.  We can use boulders to build the fill.  We can
use four-foot boulders to build the fill all the way up to within six inches of
the surface of the road by our specifications, which is a standard
specification.[13]
Tucci’s witnesses each testified that they did not expect to find boulders located at
such a shallow depth within a road prism and offered their general understanding of how a
roadway is typically constructed.  In addition, Tucci offered as an expert Mr. Mike Myette. 
Mr. Myette’s experience in roadway construction includes fourteen years with the
Washington State Department of Transportation (WSDOT), from 1964 to 1978, where he
was involved in the design and construction of interstate highways.  His background also
includes many years of private sector experience in state and municipal roadway and public
utilities construction, but it appears that Mr. Myette has never worked for the FHWA or in
national parks. 
Mr. Myette testified that he expects a “roadway built by the government” to contain
“an asphalt section, maybe some crushed earth beneath the asphalt,” and “would expect it
to be free from large boulders” and other material that would hinder excavation.  Mr. Myette
performed his own site visit of the project area and noted that, although he observed
boulders and outcroppings along the roadway, he would not expect to encounter
corresponding conditions underneath the roadway. 
13 Mr. Flores was presumably referring to the FP-03.

CBCA 4779 13
Mr. Tucci testified that the road construction projects he performed that were most
similar to the roadway in issue were neighborhood roads and municipal arteries.  Mr. Nelson
stated that he had completed only one other federal road construction job prior to the
Nisqually Entrance to Paradise Road project.  Mr. Schiemer’s testimony revealed that his
prior experience in performing work similar to the instant utility installation project was
performed on concrete municipal roads that were unlike the instant road. 
Mr. Flores testified on behalf of FHWA on, among other things, the issue of federal
roadway construction.  Mr. Flores has been an employee of the FHWA for approximately
forty years, twenty-seven of which have been spent as a project engineer.  In that capacity,
Mr. Flores provides technical expertise and on-site, day-to-day oversight of federal road
construction and rehabilitation projects in the WFLHD region, which includes Washington,
Oregon, Idaho, Montana, Wyoming, and Alaska.  Many of the projects he has overseen have
been in Mount Rainier or in areas of substantially similar terrain where it was not uncommon
to encounter boulders or bedrock during excavation. 
Regarding the FP-03, Mr. Flores testified that the specifications are used in federal
road-building projects and serve as the model for states in the development of their own
highway construction standards.  In general, a roadway constructed to the FP-03 would have
approximately five inches of a top asphalt, underlain by approximately five inches of
crushed rock or gravel, followed by six inches of subgrade material.  The guidelines permit
the use of various materials for subgrade fill, including soils, gravel, rock, and boulders. 
Consequently, according to Mr. Flores, a contractor performing work in a federally
constructed roadway (with similar site conditions) might expect to encounter rock or
boulders within sixteen inches of the road prism.
3.  Photographs
The solicitation contained 107 photographs, and during the project over 475 additional
photographs were taken and included in the record.  Several of the photographs show rock
outcroppings, cobbles, boulders, and bedrock in the immediate vicinity of the road.  The
photographs clearly establish that boulders and bedrock should be expected in undisturbed
native material at Mount Rainier National Park.  

CBCA 4779 14
Discussion
The purpose of the Differing Site Conditions clause is to allow contractors to submit
more accurate bids by eliminating the need for contractors to inflate their bids to account for
contingencies that may not occur.  See Foster Construction C.A. & Williams Brothers Co.
v. United States, 435 F.2d 873, 887 (Ct. Cl. 1970).  Differing site conditions can arise in two
circumstances:  (1) the conditions encountered differ from those indicated in the contract
(Type I), or (2) the conditions encountered differ from those normally encountered (Type II). 
Tucci contends that it is entitled to an equitable adjustment because it encountered a Type
II differing site condition during performance.  In addition, appellant maintains that WFLHD
withheld its superior knowledge of the differing condition in failing to disclose to Tucci a
draft geotechnical report, GR 04-11, which stated that boulders could be found in the
subsurface of the roadway within the limits of the construction area.  Alternatively, appellant
asserts entitlement under a Type I differing site condition theory, positing that the utility
trench details indicated Tucci would be able to establish a twenty-four inch depth and the
contract did not indicate that how to handle boulders if they were encountered.  
To establish a Type II differing site condition, appellant must demonstrate by a
preponderance of the evidence that it encountered an “unknown physical condition at the site
which differ[ed] materially from those ordinarily encountered and generally recognized as
inhering in work of the character provided for in the contract.”  48 CFR 52.236-2.  A
contractor’s burden in a Type II case is heavy because, unlike a Type I case, in which the
contract provides the basis of comparison, “there is no clear written point of reference.” 
Servidone Construction Corp. v. United States, 19 Cl. Ct. 346, 360 (1990), aff’d, 931 F.2d
860 (Fed. Cir 1991); see Charles T. Parker Construction Co. v. United States, 433 F.2d
771,778 (Ct. Cl. 1970) (“Under ‘category two’ . . . the Government has elected not to
presurvey and represent the subsurface conditions with the result that a claimant must
demonstrate that he has encountered something materially different from the ‘known’ and
the ‘usual.’  This is necessarily a stiffer test because of the wide variety of materials
ordinarily encountered when excavating in the earth’s crust.” (internal footnotes omitted)). 
“[L]acking, as it does, any specific corpus of data such as the contract,” as a basis for
comparison, it is therefore appellant’s burden to put forth “pertinent climatological,
hydrological, and geological data and all other relevant and probative evidence” in order to
determine whether the conditions the contractor encountered materially differed from what
the contractor reasonably should have expected.  Husman Bros., Inc., DOT CAB 71-15, 73-1
BCA ¶ 9889, at 46,236-37 (emphasis added). 
A contractor has the burden of proving a differing site condition by a preponderance
of the evidence.  Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1581 (Fed. Cir.
1987).  Tucci has failed to meet this burden because drawing K-8 showed undisturbed native

CBCA 4779 15
material outside the trenches and Tucci was aware or should have been aware from the
surrounding site conditions that it might encounter boulders in the undisturbed native
material under the pavement.
The gravamen of Tucci’s Type II claim is that, in its experience, “the presence of
boulders . . . high in the road prism was unusual in nature and differed materially from those
situations ordinarily encountered and generally recognized as inherent in road building and
repair.”  Appellant’s Brief at 7.  While each of Tucci’s witnesses concluded that they would
not have expected to encounter boulders at such a shallow depth within the roadway, they
described only generally how, in their experience, a typical roadway might be constructed. 
We find that Tucci knew or should have known that the road was not constructed in the way
that their witnesses testified that they believed it was constructed.  
The construction of the road began in 1903 and was completed in 1915.  Although
there is nothng in the record as to the scope or any amount of rebuilding or repaving work
that occurred between 1915 and the award of Tucci’s contract, the evidence of record makes
clear that the road was old and it remains a narrow, two-lane country road that hugs the
mountain at various points and was cut through bedrock in several areas.  The road was built
using partial bench and sidecast construction methods.  While that fact was not disclosed to
the contractor prior to award, we are not convinced that knowing the road’s construction
method would have impacted how Tucci bid the contract.  What is important about this
contract is that it informed potential bidders in drawing K-8 that the material beneath the road
outside the trenches was “undisturbed native material.”  This note should have been a red
flag to bidders that they would be digging the trenches in undisturbed native material.  That,
coupled with the readily apparent site conditions, should have informed a reasonable bidder
that it was likely to encounter cobbles, boulders, and/or bedrock as it was digging the utility
trenches.
Tucci represented at hearing that it had experience building roads and doing utility
trench work areas of Puget Sound and Mount Rainier.  It conducted a site visit prior to
bidding the contract and noticed cobbles and boulders along the roadway.  The record is
replete with photographs of the work site which show rock outcroppings and rock faces
adjacent to the roadway.  See GIIS Corp., DOT CAB 1534, et al., 85-1 BCA ¶ 17,810, at
89,004 (“A rock outcropping must be representative of subsurface conditions at the site
locations where appellant claims to have encountered changed conditions to have probative
value.”).  In this case, “the possibility of excavating rock was far from remote; in fact, it was
obvious and apparent.”  Fox, AGBCA 76-139-4, 80-2 BCA ¶ 14,788, at 72,989.  In light of
the observed terrain – notwithstanding, as appellant’s witnesses testified, that the presence
of boulders could have been the result of intentional placement by a previous contractor –
a prudent contractor could reasonably assume additional rock could be found beneath the

CBCA 4779 16
road surface.  Aguirre Associates, AGBCA 78-129, 80-2 BCA ¶ 14,648, at 72,264 (“[T]he
site inspection made by a prudent bidder can contradict [contract] plans if patent indications
are observed during inspection.”).  The site conditions clearly showed boulders in the
undisturbed native materials. 
We are at a loss to comprehend how appellant, with its experience working in and
around Mount Rainier National Park, could have reasonably believed it would not encounter
boulders on this project.  We find Tucci’s assumption that it would be able to dig the utility
trenches without encountering any boulders or bedrock to be unreasonable.
Tucci asserts that WFLHD breached the contract by withholding its superior
knowledge of the results of the GR 04-11 report.  We disagree.  The superior knowledge
doctrine affords relief to a contractor where the Government violates its “implied duty to
disclose to [the] contractor otherwise unavailable information regarding some novel matter
affecting the contract that is vital to its performance.”  Scott Timber Co. v. United States,
692 F.3d 1365, 1373 (Fed. Cir. 2012) (quoting Giesler v. United States, 232 F.3d 864, 876
(Fed. Cir. 2000)).  The doctrine is applied where: 
(1) a contractor undertakes to perform without vital knowledge of a fact that
affects performance costs or duration, (2) the government was aware the
contractor had no knowledge of and had no reason to obtain such information,
(3) any contract specification supplied misled the contractor or did not put it
on notice to inquire, and (4) the government failed to provide the relevant
information.
Hercules, Inc. v. United States, 24 F.3d 188, 196 (Fed. Cir. 1994), aff’d, 516 U.S. 417
(1996) (quoting American Ship Building Co. v. United States, 654 F.2d 75,79 (Ct. Cl.
1981)). 
It is undisputed that WFLHD did not provide the GR 04-11 draft report to
prospective bidders during the solicitation process.  On the whole, however, the GR 04-11
report provides very limited information regarding the subsurface conditions that could be
encountered while digging the utility trench.  The report gave no definitive indication that
there were boulders or bedrock in the subsurface materials within the depth of the utility
trench.  The surrounding site coupled with drawing K-8 give a much clearer picture that
boulders were to be anticipated while digging the trenches.  We do not believe that the GR
04-11 draft report contained any information that would have made more apparent to Tucci
that it might encounter boulders or bedrock in the roadbed.  That Tucci’s assumption that
this particular road would have contained a twenty-four inch road prism, like every other
road it purportedly has built, is simply not reasonable given the circumstances presented

CBCA 4779 17
here.  Furthermore, Tucci also had experience working on this road on a prior project, yet
its witnesses were silent as to whether that portion of the road was also built on top of
undisturbed native material, an omission which we weigh against appellant.  How this
roadway in Mount Rainier was built and the possibility of encountering boulders or bedrock
is information that is chargeable to Tucci based upon its previous experience in the park and
the site visit conducted prior to bidding.  See Hardwick Bros. Co., II v. United States, 36
Fed. Cl. 347, 389 (1996) (“Since Hardwick either knew or should have known, through its
own investigation and site visit, the well known, rule-of-thumb slope of the river, plaintiff
cannot charge defendant with the withholding of superior information for its failure to
disclose river slope data.”); cf. Wayne Construction, ENG BCA 4942, 91-1 BCA ¶ 23,535,
at 118,025-27 (1990) (rejecting appellant’s superior knowledge claim because the allegedly
withheld information could have been obtained if contractor had performed a site visit of
the project area). 
Because Tucci was on notice of the conditions in Mount Rainier National Park prior
to contract award, WFLHD’s knowledge cannot be said to be superior.  Where the
“particular information is equally available to both parties,” it is “fundamental” that the
contractor’s relief under a superior knowledge claim is precluded.  Maitland Brothers Co.,
ASBCA 24032, 84-2 BCA ¶ 17,463, at 86,998, aff’d on reconsideration, 85-2 BCA
¶ 18,041. 
Tucci also argues that it is entitled to recover for a Type I differing site condition
because the contract impliedly indicated that obstructions would not be encountered within
the first two feet of trenching.  To recover under a Type I differing site condition theory, “the
contractor must prove, by a preponderance of the evidence, that the conditions indicated in
the contract differ materially from those it encounters during performance[.]” Quality
Forests, Inc. v. Department of Agriculture, CBCA 123, 07-1 BCA ¶ 33,490, at 166,003
(quoting H.B. Mac, Inc. v. United States, 153 F.3d 1338, 1345 (Fed. Cir. 1998)).  “A
contractor is not eligible for an equitable adjustment for a Type I differing site condition
unless the contract indicated what that condition would be.”  Comtrol, Inc. v. United States,
294 F.3d 1357, 1363 (Fed. Cir. 2002) (citing P.J. Maffei Building Wrecking Corp. v. United
States, 732 F.2d 913, 916 (Fed. Cir. 1984)); see Husman Bros., Inc., 73-1 BCA at 46,237
(“Where the contract documents do not show or indicate anything about the alleged
subsurface condition, the necessary postulate for a ‘category one’ [differing site] condition
fails.”). 
A contract may be silent as to potential subsurface conditions affecting the work, yet
still implicitly indicate through its specifications that the subsurface conditions will not be
enxountered, thus permitting recovery for a Type I differing site condition.  See Servidone
Construction Corp. v. United States, 19 Cl. Ct. 346, 359-60 (1990), aff’d, 931 F.2d 860 (Fed.

CBCA 4779 18
Cir. 1991) (citing Foster Construction Co. v. United States, 193 Ct. Cl. 587, 604 (1970));
GIIS Corp., 85-1 BCA at 89,003 (finding that a requirement to embed cable to depths of 24"
and 36" necessarily implied impenetrable rock would not be encountered in trenching). 
However, among the other “indispensable elements” of a Type I claim, see Weeks Dredging
& Contracting, Inc. v. United States, 13 Cl. Ct. 193, 218 (1987), aff’d, 861 F.2d 728 (Fed.
Cir. 1988), is that the contractor must establish that the subsurface materials it encountered
were reasonably unforeseeable.  Renda Marine, Inc. v. United States, 66 Fed. Cl. 639, 656
(2005), aff’d, 509 F.3d 1372 (Fed. Cir. 2007)  In essence, the underlying issue in a Type I
claim is whether the contractor could reasonably have anticipated the conditions encountered
from a knowledgeable interpretation of the contract documents, his inspection of the site, and
his general experience (quoting Erickson-Shaver Contracting Corp. v. United States,
 9   Cl. Ct. 302, 304 (1985)); see also GIIS Corp., 85-1 BCA at 89,003 (“the question remains
whether the conditions encountered could have been reasonably anticipated from an
examination of the contract documents or the site”).  
The facts of this case do not support a finding of a Type I differing site condition.  The
specifications and drawings did not implicitly represent that bidders would not encounter
boulders within the contractually-stated minimum depths.  To the contrary, by showing that
while digging the trenches the contractor would be working in undisturbed native material,
drawing K-8 indicated the opposite.  Furthermore, as earlier discussed, the boulders Tucci
encountered were reasonably foreseeable given the site conditions.  Tucci was not free to
disregard these conditions and is bound by the conditions set forth in drawing K-8 and the
site conditions that were readily apparent during the bidding.  It appears to us that Tucci did
not take the steps reasonably necessary to ascertain the nature of the work as set forth in the
contract at drawing K-8, consider the site conditions, and bid the contract accordingly. 
Decision
For the foregoing reasons, the appeal is DENIED.
__________________________
PATRICIA J. SHERIDAN
Board Judge

CBCA 4779 19
We concur:
_________________________ __________________________
RICHARD C. WALTERS HAROLD D. LESTER, JR. 
Board Judge Board Judge