ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of -- ) 

) 

Tetra Tech Facilities Construction, LLC ) 

) 

Under Contract No. W912K6-09-C-0002 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 58568, 58845 

Michael L. Burnett, Esq. 

Patricia M. Rosendahl, Esq. 

Greenberg Traurig, LLP 

Houston, TX 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Ahsan M. Nasar, JA 

Brian E. Bentley, Esq. 

CPT Meghan E. Mahaney, JA 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE O'SULLIVAN 

Tetra Tech Facilities Construction, LLC (hereinafter Tetra Tech or appellant) 

appeals from a contracting officer's (CO's) final decision denying its certified claim for 

an equitable adjustment due to differing site conditions encountered in constructing an 

addition and alterations to the Army Aviation Support Facility at Aberdeen Proving 

Ground, Maryland. Only entitlement is at issue. We have jurisdiction under the Contract 

Disputes Act, 41 U.S.C. §§ 7101-7109. We decide entitlement in favor of Tetra Tech. 

FINDINGS OF FACT 

Solicitation and Contract Award 

1. Solicitation No. W912K6-09-R-OOO 1 was issued by the United States 

Army Property and Fiscal Office (USPFO) on 31 March 2009. 1 It called for the 

design and construction of an addition and alteration to the Maryland Army Aviation 

Support Facility (AASF), Weide Army Airfield, Edgewood Area, Aberdeen Proving 

Ground (APG), Maryland. (R4, tab 3) The procurement was structured as a two phase 

"design-build" process under FAR Part 36.3 (id. at 4 ). As described in the solicitation: 

1 A number of acronyms used and defined in this decision are collected in an Acronym 

Glossary appended to the decision for the reader's convenience. 
This process requires potential contractors to submit their past 

performance, basic technical approach and capability 

information initially for review and consideration by the 

Government. Following the review, evaluation, and rating of 

these proposals, the Government intends to select three, but 

no less than two and not to exceed five, of the highest rated 

contractors to receive the technical requirements package and 

to participate in the Phase Two process of this solicitation. 

In Phase Two, the selected off erors would be given the opportunity to submit technical and 

cost proposals and compete for contract award. (Id. at 3, 4) Tetra Tech was selected for 

Phase Two and was awarded Contract No. W912K6-09-C-0002 (the contract) in a total 

amount of $22,564,852 on 23 September 2009 (R4, tab 1; app. supp. R4, tab 72). The 

contract work consisted of renovation of an existing 11,500 square foot (SF) facility; 

excavation and construction of a 19, 769 SF addition complete with loading dock, storage 

area, access road, and building access apron; expansion of the hangar for an additional 

33,455 SF heated and 32,755 SF unheated hangar space; and additional hardscape consisting 

of aircraft parking pads, taxiways, and a transit pad (app. supp. R4, tab 74 at 7). 

2. The contract as awarded consisted of "(a) the Government solicitation 

and your offer, and (b) this contract award. No further contractual document is 

necessary." (R4, tab 1 at 2) The contract included the FAR 52.236-2, DIFFERING SITE 

CONDITIONS (APR 1984) clause, which provides: 

(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. 

( c) No request by the Contractor for an equitable 

adjustment to the contract under this clause shall be allowed, 

2 
unless the Contractor has given the written notice required; 

provided, that the time prescribed in (a) above for giving 

written notice may be extended by the Contracting Officer. 

(d) No request by the Contractor for an equitable 

adjustment to the contract for differing site conditions shall be 

allowed if made after final payment under this contract. 

(Id. at 16) In addition, the General Conditions of the contract included the following provisions: 

3.04 SITE INVESTIGATION: The Design-Builder 

acknowledges that the Design-Build Team has investigated and 

satisfied [sic] as to the conditions affecting the work; including 

but not restricted to those bearing upon transportation, disposal, 

handling and storage of materials, availability of labor, water, 

electric power, roads and uncertainties of weather, river stages, 

tides or similar physical conditions at the site, the conformation 

and conditions of the ground, [and] the character of equipment 

and facilities needed preliminary to and during prosecution of 

the work. The Design-Build Team further 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 and/or available 

from the using agency. Any failure by the Design-Build 

Team to acquaint itself with the available information will not 

relieve it of responsibility for estimating properly the difficulty 

or cost of successfully performing the work. ... 

3.05 CONDITIONS AFFECTING THE WORK: The 

Contractor/Design-Build Team shall be responsible for 

having taken steps reasonably necessary to ascertain the 

nature and location of the work and the general and local 

conditions, which can affect the work or the cost thereof. 

Any failure by the Contractor/Design-Build Team to do so 

will not relieve him from responsibility for successfully 

performing the work without additional expense to the 

Government. 

(App. supp. R4, tab 74 at 111-12) 

3. Appendix A to the Procedural Manual for Professional Services (which was 

Section III of the Phase Two solicitation) required the successful bidder to arrange for a 

3 
subsurface exploration and evaluation and analyze the information relative to the site 

and subsurface conditions "as they pertain to project requirements." Further: 

[T]he data and analysis shall be adequate, correct and 

complete for the intended purposes of planning, design, 

quantity and cost estimating, and determining the 

construction feasibility of the project. 

NOTE: The subsurface data provided by the government 

to support the RFP is general in nature and is not 

intended to be an adequate representation of the entire 

site. The Design-Builder must insure adequate subsurface 

information to determine the construction feasibility of 

the project. 

(App. supp. R4, tab 74 at 275) 

4. Pursuant to the contract, Tetra Tech was responsible to come up with a design for 

the project that would have to be approved by the government before the actual construction 

work could begin. Tetra Tech was required to submit designs to the government for review 

and approval at various stages of completion of the design documents. Only after the 100% 

design documents were approved would the government issue a notice to proceed (NTP). 

(Tr. 1/49-50) 

Contract Indications Regarding Site Conditions 

5. Included with the Phase Two solicitation as Attachment B was a document 

entitled "Geotechnical Engineering Exploration and Analysis" dated 11 February 2009 

and prepared by Giles Engineering Associates, Inc. for the Maryland Military 

Department2 (Giles Report) (R4, tab 74 at 488-523). The Giles Report was included in 

the solicitation documents to provide the bidders with geotechnical information about the 

project site to allow them to develop proposals (id. at 111, 491 ). The Executive 

Summary of the report summarized its findings as follows: 

Six geotechnical test borings were performed at the subject 

site to evaluate subsurface conditions. Topsoil consisting of 

silty clay and sandy clay with trace organic matter was at the 

surface at the test borings. The topsoil was measured to be 

2 The Maryland Military Department, otherwise known as the Maryland Army National 

Guard (MDARNG), leased the property where the work was to be done from 

the Department of the Army and was the intended end user of the facility 

(tr. 2/120-21; app. supp. R4, tab 193). USPFO is part of the MDARNG 

(tr. 2/120-21). 

4 
(Id. at-491) 

between about 4 and 8 inches thick. The native soil below the 

topsoil generally consisted of firm silty sand and stiff to very 

stiff silty clay and sandy clay. It is estimated that the water 

table was about 7 to 11 feet below-ground at the test borings 

with perched water at about 1 Yi feet below-ground when the 

[exploration] was conducted. 

The proposed building will be a two-story structure. It is 

assumed to be a masonry structure that will not have a 

basement or other below-ground spaces. Based on the 

assumed first floor elevation ... a spread footing foundation 

designed for a 3,000 pound per square foot (psf) maximum, 

net, allowable soil bearing capacity is recommended for the 

proposed building. 

6. Giles reported Material Conditions in Section 6 of its report. The topsoil was 

characterized as consisting of silty clay and sandy clay with trace organic matter in layers 

4 to 8 inches deep. Below that: 

The native soil below the topsoil at Test Boring No. 1 

generally consisted of firm silty fine sand to at least the 

16 foot test boring termination depth. The native soil at Test 

Boring No. 2 generally consisted of stiff silty clay to at least 

the 21 foot test boring termination depth. The native soil at 

the remaining test borings generally consisted of stiff to very 

stiff silty clay and sandy clay and firm clayey sand, silty sand, 

and sandy silt to at least the 16 and 21-foot test boring 

termination depths. 

(App. supp. R4, tab 74 at 494) Giles also addressed groundwater: 

7.0 GROUNDWATER CONDITIONS 

It is estimated that the water table was about 7 to 11 feet 

below-ground at the test borings with perched water at about 

1 Yi feet below-ground .... Groundwater conditions will 

fluctuate and groundwater may become perched above the 

water table. 

The estimated water table depth is only an approximation based 

on the colors and water content of the retained soil samples, and 

water levels that were encountered at the test borings. The 

5 
(Id. at 495) 

actual water table depth may be higher or lower than estimated. 

If a more precise depth estimate is needed, groundwater 

observation wells are recommended to be installed and 

monitored at the site. 

7. The Giles Report was the only source of information provided by the 

government about subsurface conditions on which bidders could base their proposals 

(tr. 4/31-32). While a site visit was conducted prior to bid, Tetra Tech and the other 

bidders were limited to visual observations-no invasive investigation was allowed 

(tr. 1/52, 298-99). 

8. The significance of the Giles Report's characterization of the soils at the 

project site was addressed by several witnesses. Mr. Robert Allison, Tetra Tech's design 

manager, testified that after looking at the report and the boring logs and the description 

of the soils as firm or stiff, he had no concerns about the project from a design 

perspective (tr. 1/290). Nor was he concerned about either the amount of water or its 

elevation. Mr. Richard Lipscomb, appellant's senior project manager, testified: "He 

[Giles] described the soils as being firm, stiff soils that we could work off of and build off 

of, that there was nothing out there that would indicate that we had to remove soils or 

replace soils due to unsuitable conditions." (Tr. 1/43) Dr. Christopher Meehan, 

appellant's expert geotechnical engineering witness3, reviewed the Giles Report and had 

the following observations: 

A The soils encountered on the project site were quite 

variable in nature. There was sand, silt and clay in extensive 

proportion and sand particles are larger, silt is smaller, clay is 

3 Dr. Meehan holds a tenured Associate Professor position in the Department of Civil and 

Environmental Engineering at the University of Delaware. He has both a Masters 

and a Ph.D. degree in civil engineering from Virginia Tech with a specialty focus 

in geotechnical engineering. He engages in teaching, research, and community 

service focused on geotechnical engineering, which includes participation in a 

number of professional organizations at the national level, organizing conferences 

and serving in an editorial capacity for publication of conference proceedings; and 

doing technical review of journal papers and conference articles. (Tr. 3/7-10) He 

has published numerous articles on topics including the behavior and porosity 

of saturated soils, ground improvement technologies, and compaction control 

(tr. 3/12). He also has extensive work experience doing construction quality 

assurance, inspection of soils, soil sampling and classification, ground water 

assessments, and inspection of site conditions (tr. 3/13-14 ). He was not present at 

the site during construction and was not involved with the project in any way 

while it was ongoing. 

6 
(Tr. 3117-18) 

smaller than that so you have kind of a trend in gradation. 

There [were] many classifications of what we call 

intermediate classifications for example a silty clay is a clay 

that has a significant percentage of silt mixed in with it. 

Sometimes it's mixed uniformly, sometimes it is kind of 

present in layers. So you saw significant stratigraphy in 

layering of the site, a lot of variability in grain size and a lot 

of general variability in properties. In terms of the actual 

consistency of the materials they were described as stiff quite 

frequently, sometimes you would see dents were medium or 

firm there were a few instances where things fell outside of 

that range but the predominant description of the in situ 

condition of the soils was something like medium to stiff. 

Q Did you see a lot of soft soil in these borings sir? 

A No I did not. 

Q Now why when you say we like medium, stiff, 

firm, why do you like that? 

A Generally it exhibits good engineering behavior[-] 

the soils tend to be stronger, they tend to be less compressible 

and so when we put load on them they are less likely to fail, 

they are less likely to move [and] they have good engineering 

characteristics. 

9. The government's expert, Mr. Ethan Weikel,4 testified to the contrary, that the 

Giles Report put Tetra Tech on notice that it would encounter soils at or near saturation. 5 

Mr. Weikel testified that the boring log for Giles Boring No. 2, which characterized the soil 

4 Mr. Weikel holds a bachelor's degree in Science and Geology from the College of 

William and Mary and is a hydrogeologist for the U.S. Army Corps of Engineers 

(tr. 5/7). He has worked on eight projects at APG over the past several years (id.). 

He is not a geotechnical engineer and cannot offer a geotechnical engineering 

opinion (tr. 5/23 ). He is qualified to opine on evaluation of subsurface conditions 

but not on design or construction recommendations (tr. 5/27-28, 30-31). 

Mr. Weikel based his opinions primarily on the raw boring data in the Giles and 

Haley & Aldrich reports and did not review the daily project records (tr. 5/170). 

He was not present at the site during construction and was not involved with the 

project in any way while it was ongoing. 

5 The government did not call a witness from Giles Engineering to testify regarding its 

geotechnical report. 

7 
as a silty clay, showed "a water content in the high single digits to upper teens" which 

"begets material that is near saturation." (Tr. 5/38-39) The Board notes that the log for 

Giles Boring No. 2 recorded moisture contents from 7% to 14%, the latter being 15 feet 

down, and characterized the soils as "damp" or "moist," not saturated. No water was 

encountered during drilling, which was terminated at 16 feet down. (Supp. R4, tab 70 at 529) 

10. With respect to Giles Boring No. 3, which was terminated at 21 feet down, 

Mr. Weikel testified that the log showed water content of 12% to 13%, and stated that 

water content "in the mid-teens to upper teens," "for dense silts and clays," means "you 

hit the saturation limit for that material" (tr. 5/39-40). The Board notes that the log for 

Giles Boring No. 3 characterized the soils, in descending order, as sandy clay, clayey fine 

sand, silty fine sand, silty clay, silty fine sand, and silty clay. It did not characterize the 

soils as "dense" or as saturated. Each soil layer was characterized as moist or damp, 

except for the silty fine sand layer encountered at approximately the same level at which 

water was encountered-14.5 feet down-which was characterized as "wet." (Supp. R4, 

tab 70 at 530) 

11. For Giles Boring No. 4, terminated at 21 feet down, Mr. Weikel testified that 

water content in the "mid-teens" for dense silty clay "indicates a material that's near 

saturation" (tr. 5/42). The Board notes that the log for Giles Boring No. 4 encountered 

water at 9 feet down. The water content of the bottom-most layer of silty clay was recorded 

as 15% at 15 feet down and 13 % at 20 feet down, and this layer was characterized as "wet." 

No water content was recorded for the sandy layer above it starting at 8.5 feet down, but it 

was characterized as "moist to wet." Above 8.5 feet the soil was characterized as "moist." 

(Supp. R4, tab 70 at 531) The log did not label the soils as "dense." 

12. For Giles Boring No. 5, terminated at 21 feet down, Mr. Weikel testified 

that percent water content in the mid- to upper teens "for dense clays" indicates those 

materials are at or near saturation (tr. 5/44). The Board notes that the log for Giles 

Boring No. 5 showed perched water at 1.2 feet down, but no water was encountered 

thereafter down to the 21 foot termination depth. 6 The water content of the soil ranged 

from I 0% at 5 feet down to 17% at 10 feet down and thereafter, to 21 feet down, was 

between 14% and 16%. No water content was recorded for the top sandy layers, only for 

the silty clay beginning at about four feet down, which the log characterized as "moist" 

and did not characterize as "dense." (Supp. R4, tab 70 at 532) 

13. Mr. Weikel did not address Giles Boring Nos. 1 or 6. Water content was 

not recorded for these borings (supp. R4, tab 70 at 528, 533). The log for Boring No. 1 

(terminated at 16 feet down) shows that water was encountered at 11 feet down and 

6 According to appellant's expert, Dr. Meehan, perched water is water that is trapped, 

generally above the water table, by an impermeable layer such as rock or clay 

(tr. 3/27). It is usually considered to be a temporary or transient condition (id.), 

although it can remain in a location for some time (tr. 3/27-28). 

8 
describes the soils as "moist" above four feet and "moist to wet" below four feet (id. at 528). 

The log for Boring No. 6 (terminated at 16 feet down) shows no water was encountered and 

the soils are described as "moist" all the way down to the termination depth (id. at 533). 

14. Mr. Weikel testified that saturation levels directly correspond to the 

"liquid limit" - the point at which soils begin to act like a liquid and are not compactable 

(tr. 5/40) - but the weight of the evidence is to the contrary. Dr. Meehan testified that 

saturation does not equate to liquid limit. Liquid limit must be determined by a 

specialized laboratory test: 

A ... So saturation is defined as the volume of water to 

the volume of voids. So 100 percent saturation, a completely 

saturated soil, all of the ... void space is filled with water. So 

when you say saturation, I'm assuming you're talking about 

100 percent saturation, not the degree of saturation. 

Q Yes 

A So, yes, and then liquid limit is ... a standardized test 

that we do to kind of measure that property that you describe 

[where soil begins to act more like a liquid than a solid]. 

Q Was it Atterberg? 

A Yes, Atterberg limits test. 

Q Okay. 

A Yes, there's a specific laboratory test that's run. 

(Tr. 3/76) Haley & Aldrich, Inc., Tetra Tech's geotechnical engineering firm, reported the 

results of its subsurface investigation in a report dated 4 March 2010. Its report included the 

results of the Atterberg limits tests it conducted on the project soils. 7 The liquid limits 

ranged from 18% for a sample of sandy silt to 51 % for a sample of clay soil. Sixteen of 

19 sample results yielded a liquid limit of 22% or above. (App. supp. R4, tab 57 at 264) 

15. The soils water content recorded by the Giles Report ranged from 7% to 17%. 

The highest value of 17% is recorded in the log for Boring No. 5 at 10 feet down. Above 

10 feet, the highest percentage recorded is 13%. (Supp. R4, tab 70 at 528-533) The March 

2010 Haley & Aldrich report determined that optimum moisture contents for compaction 

were between 8.7% and 12.2% (app. supp. R4, tab 57 at 259-61). Haley & Aldrich later 

characterized the data in the Giles Report regarding soil moisture content: "[I]n-situ 

moisture contents typically ranged between 8 and 15 percent, which is very close to the 

optimum moisture content required for successful compaction" (app. supp. R4, tab 103 at 2). 

7 Neither Giles Engineering nor Mr. Weikel conducted Atterberg limits testing. 

9 
16. Mr. Weikel also testified regarding the boring logs contained in the Haley 

& Aldrich report and the water contents indicated therein (tr. 5/44-78). Mr. Weikel in his 

expert report cited the data from Haley & Aldrich Boring No. 8, where groundwater was 

encountered at one foot below ground level, and performed a series of calculations 

assuming that groundwater was at the same level for the entire new building excavation. 

Based on that assumption, he concluded that Tetra Tech should have known that it would 

be excavating 8 feet into groundwater and would need to remove nearly 300,000 gallons 

of water from the excavation (app. supp. R4, tab 312 at 8). Mr. Weikel relied on this 

calculation and the Haley & Aldrich recommendation to design for groundwater at 1 foot 

below the surface to opine that Tetra Tech should have planned to institute a site-wide 

dewatering system 6 to 8 months in advance of attempting excavation (id.). However, 

Mr. Shelton of Haley & Aldrich testified to the fact that their boring results were affected 

by the melting of a significant layer of snow that had fallen in late December, causing 

surface water to infiltrate directly into the boring holes and causing higher water levels in 

some cases than would be expected in stabilized conditions (tr. 3/212-13). Mr. Shelton 

also testified that Haley & Aldrich recommended that Tetra Tech assume groundwater at 

one foot below ground level only for the design of certain elements that "could be 

impacted ifthe water levels were as high as what we saw from a snowstorm or a large 

rainstorm such as the underslab drainage system. But from a construction standpoint we 

knew that water wasn't one foot below the ground." (Tr. 3/218) Rather, he stated that 

Tetra Tech would have to excavate down 10 to 15 feet to encounter the water table (id.). 

17. The Board finds that the Giles Report did not warn of soils "at or near 

saturation" nor of soils that were at or near their liquid limit, such that bidders would 

reasonably expect soil instability. Rather, the Giles boring logs and geotechnical 

evaluation thereof told bidders on the project to expect (and thus the contract indicated) 

medium to stiff constructible soils with close to ideal moisture content for compaction. 

The record discloses no other reason Tetra Tech should have anticipated anything but 

medium to stiff constructible soils at the site. 

Tetra Tech's Geotechnical Investigation and Modification No. 3 to the Contract 

18. Pursuant to the contract's requirement to conduct a thorough subsurface 

exploration and evaluation (finding 3), Haley & Aldrich conducted an evaluation of the 

site's subsurface soil and groundwater conditions and developed recommendations for the 

design and construction of the structure's foundations. Haley & Aldrich performed their 

investigation from 24 December 2009 to 7 January 2010 and issued their report on 4 March 

2010. (R4, tab 8) Prior to the issuance of their report, they advised Tetra Tech that soil 

borings taken underneath the footprint of the hangar addition indicated the need for a deep 

foundation system rather than the shallow spread footing foundation system recommended 

in the Giles Report. Their concern, briefly stated, was that building the addition to the 

existing hangar on a spread footing system would result in too much settlement vis-a-vis the 

existing building, causing the two to be unacceptably out of alignment. Tetra Tech passed 

this information on to the USPFO CO on 9 February 2010, attaching a draft version of the 

10 
Haley & Aldrich report and noting that Tetra Tech would need more information before 

they could design the deep foundation system. (Supp. R4, tab 77) 

19. The final report submitted by Haley & Aldrich on 4 March 2010 made the 

following recommendation with respect to the foundation for the hangar addition: 

The geotechnical report included in the RFP for the project 

[the Giles Report] indicated that a shallow spread footing 

foundation system designed using a bearing pressure of 

3,000 psfwould be suitable for support of the structure .... 

The results of our evaluation indicate that the [recommended 

foundation] will result in total settlements on the order of 

3 in. to 4 in.... Through our discussions with the design team, 

we have learned that the anticipated settlements are not within 

tolerable limits for the structure and supporting infrastructure. 

Furthermore, it is our understanding that the proposed hangar 

will abut the existing hangar, which is supported on a deep 

foundation system. In order to maintain similar performance 

characteristics, the foundation system of the proposed hangar 

should perform similarly to the foundation system that 

supports the existing hangar. Consequently, we recommend 

that the hangar be supported on a deep foundation system 

consisting of auger-cast piles. 

(R4, tab 8 at 15) 

20. On 23 April 2010, the USPFO contracting specialist requested that Tetra Tech 

provide the government with pricing for the change from a spread footing foundation system 

to a deep foundation system using 12-in. diameter cast-auger piles (app. supp. R4, tab 80). 

On 7 May 2010, the government issued Modification No. POOOO 1 to the contract, suspending 

work "on the Structural Design due to differing conditions between the RFP's soil report by 

Giles dated February 11, 2009 and TTFC's soil report by Haley & Aldrich dated 4 March 

2010" (R4, tab 9). The suspension of work on the structural design was lifted, effective 

15 July 2010, by Modification No. P00002 (Mod 2), issued on 23 July 2010. Mod 2 stated 

that the government had decided to adopt Tetra Tech's recommendation for a deep foundation 

system for the hangar addition and that funding for the deep foundation footings would be 

provided under a separate contract modification. (R4, tab 10 at 3) 

21. Bilateral Modification No. P00003 (Mod 3) to the contract adding $1,271,963 

in funding to the contract for the deep foundation system and extending the contract period 

of performance from 6 November 2012 to 5 January 2013 was signed by the USPFO CO 

on 30 September 2010. Mod 3 stated that "Verbal approval" for the contractor to proceed 

with related design work had been given 20 August 2010. (R4, tab 11 at 2) Tetra Tech 

completed the deep foundation design in September of 2010 (tr. 1/69). 

11 
Subsurface Saturated Soils South of Column Line 9 and Leaking Fire Hydrant 

22. Meanwhile, on 21 September 2010, the government issued the NTP for 

construction to begin (app. supp. R4, tab 92). The first construction work performed 

by Tetra Tech involved sediment and erosion control, to include excavation of retention 

(or detention) ponds to a depth of approximately 10 feet, as well as installation of silt 

fences and excavation of channels to direct surface water runoff into the retention ponds 

(tr. 2169, 70-71). 8 The soils encountered during this operation were stiff, constructible 

soils as described in the Giles Report, and no water was encountered (tr. 1/76, 258, 2/70). 

The sediment and erosion control measures put in place by Tetra Tech worked effectively 

to control surface water from precipitation and protect exposed subgrades (tr. 2/97). 

After completing the earthwork and receiving a discharge permit for stormwater from the 

MDE on 30 November 2010 (R4, tab 230), Tetra Tech began site excavation for the new 

building on 1 December 2010.9 

23. Excavation work started on the north side of the project site next to the wall of 

the existing building and progressed south (tr. 1/77). Earth was excavated in two-foot 

layers to facilitate sweeping for unexploded ordnance, since the detection equipment 

being used during the sweep could only penetrate two feet deep (tr. 1/79). The area north 

of Column Line 910 was excavated without any issues down to one foot above sub grade 

(sub grade for the building addition was six to eight feet below original grade) in the first 

half of December 2010 (tr. 2/74, app. supp. R4, tab 75, vol. 2 at 10 of36). On or about 

16 December, however, as Tetra Tech continued its excavation south of Column Line 9, 

it encountered saturated, unstable soil conditions. As described by Mr. Lipscomb: 

"the further south we progressed the worse the soil conditions got. When they cut the 

first couple layers down at the south end it was fine. But then as we got deeper it got 

worse .... And then it got to the point where they actually couldn't even continue." 

(Tr. 2/75-76) At the progress meeting held on 22 December 2010, Tetra Tech notified 

the government of the possible differing site condition (R4, tab 13). 

24. On 24 January 2011, Tetra Tech wrote CO Hall 11 enclosing a Haley & Aldrich 

report on the recently encountered soil conditions (R4, tab 14 ). The enclosed report 

states in pertinent part: 

·s Tetra Tech's Stormwater Pollution Prevention Plan (SWPPP) was submitted to the 

Maryland Department of the Environment (MDE) in July 2010 (app. supp. R4, 

tab 218) and was approved by the MDE on 13 September 2010 (id., tab 222). 

9 The parties in their briefing appear to agree on this date but they do not provide, and the 

Board has been unable to find, record citations for it. 

10 Rule 4, tab 293 is a map of the project site delineating the areas of the site requiring 

soils remediation. It was prepared by Mr. Lipscomb as part of the REA 

documentation (tr. 1/40). Mr. Lipscomb testified to the location of Column Line 

9 on this map (tr. 1/77). 

11 Mr. Ed Hall succeeded Ms. Rita Carter as CO on the contract in October 2010. 

12 
[I]t is our opinion that the currently exposed soils are 

exhibiting pumping behavior that exceeds acceptable limits to 

be considered as a suitable subgrade. Furthermore, we do not 

anticipate that the subgrade soils, in their current state, can be 

compacted to meet specification requirements due to excess 

moisture that is trapped within the cohesive soils that underlie 

the site. As such, some form of subgrade stabilization will be 

required. 

(Id. at 2). 12 Options for subgrade stabilization suggested in the report included geogrid 

stabilization and cement/lime stabilization, depending on the severity of conditions (id. at 3-4 ). 

25. The 24 January 2011 Haley & Aldrich report also discussed the differing 

moisture contents reported in the February 2009 Giles Report and in the Haley & Aldrich 

report of March 2010: 

1. The geotechnical report included in the RFP that 

was prepared by Giles Engineering Associates (Giles) 

contained laboratory test data indicating that in-situ 

moisture contents typically ranged between 8 and 15 

percent, which is very close to the optimum moisture 

content required for successful compaction. 

2. During the subsurface investigation program that was 

executed by Haley & Aldrich between 24 December 2009 

and 7 January 2010, a significant snowstorm occurred that 

delayed the investigation by approximately two weeks. 

By the time work resumed, temperatures were above 

freezing and the snow began to melt, causing the 

subsurface soils to become saturated. 

3. When comparing the natural moisture content of samples 

tested by Haley & Aldrich to the natural moisture content 

of the samples tested by Giles, our moisture contents 

were significantly higher. However, the difference was 

attributed to saturation caused by the melting snow. As 

such, moisture contents indicated in the Giles 

geotechnical report appeared to be more representative of 

what to expect when excavation activities began and the 

subgrade soils were exposed. 

12 "Pumping" is a form of soil instability characterized by wave-like behavior when 

heavy equipment moves across saturated soil (R4, tab 14 at 2 n.l). 

13 
(R4, tab 14 at 3) Haley & Aldrich continued by noting that since the Giles data indicated 

moisture contents would be near the optimum required for compaction, no subgrade 

stabilization measures had been originally recommended (id.). Moreover, while the cause of 

the soupy soils was not yet known at this time, it was unlikely to be weather-related: 

(Id.) 

Precipitation data for October, November, and December 

2010 indicate that the average precipitation level was 

approximately 30% below the monthly average; furthermore, 

there have not been any significant precipitation events 

leading up to or during the current earthwork operations. 

Taking this into consideration, it is highly unlikely that the 

current subgrade conditions are seasonal or have been 

influenced by recent weather patterns. 

26. Not having received a response from CO Hall, Tetra Tech followed up its 

24 January 2011 letter with another letter, dated 5 February 2011, in which it informed 

the CO that in order to mitigate the impact on the project schedule, it was incurring costs 

as a result of the saturated soils south of Column Line 9 (R4, tab 15). Specifically, it had 

started construction of two stabilized stone access roads necessary to allow the auger cast 

pile and concrete subcontractors to continue with their work, and had also undercut, at the 

direction of the geo tech soil engineer, several areas underneath the grade beams between 

Column Lines 1-8 due to poor soil conditions (id.). Neither the temporary access roads 

nor the soils remediation were contemplated or priced in Tetra Tech's proposal, the 

contract, or Mod 3 (tr. 1/93). 

27. On 7 February 2011, Tetra Tech informed CO Hall that it had discovered a 

leaking fire hydrant near the site of the new building, which had necessitated pumping 

the surrounding area to remove excess moisture from the soil before proceeding with the 

work (R4, tab 16). It suggested a meeting with USPFO to discuss the options and any 

information or documentation needed by the government (id.). The hydrant discovered to 

be leaking was scheduled to be removed during the project, and initially there was some 

uncertainty over who was responsible for its maintenance. After discovering the 

saturated soils surrounding the hydrant Tetra Tech dug a pit to start capturing the excess 

water from the surrounding area. (App. supp. R4, tab 240) It then began pumping the 

water out in order to be able to proceed with construction (R4, tab 16). 

28. On 11 February 2011, Ms. Julianne Hitch, also a CO with the USPFO, sent 

out a request for a "formal briefing" on the differing site conditions, to be held on 

18 February 2011 (R4, tab 17). Government representatives in attendance were to 

14 
include CFMO, POZ Environmental, APG DPW, USPFO, and contracting. 13 At the 

meeting, which Ms. Hitch attended but Mr. Hall did not, Tetra Tech discussed the leaking 

infrastructure it was encountering14 and explained the remediation options that were 

available (tr. 11116-17). The government requested that Tetra Tech submit a cost 

proposal for dealing with the issues thus far encountered (tr. 11119). 

29. Tetra Tech submitted its cost proposal informally at the progress meeting on 

23 February 2011 and formally by letter dated 25 February 2011 (R4, tab 19). The 

proposal, for a total of $624,559 (direct costs and normal mark-up only), covered 

excavation and replacement of unsuitable soils in the areas identified to date. Tetra Tech 

noted that: "Given the poor soil conditions, south of column line 9, and since time is of 

the essences [sic] with critical path activities (auger cast piles, concrete pile caps and 

grade beams) we will begin replacement of this unsuitable fill beginning Tuesday, 

March 1, 2011." (Id. at 1) On 4 March 2011, Tetra Tech followed up with a letter to 

CO Hall pointing out that as of the date of the letter, no official response or direction had 

been provided by the CO concerning how the contractor should proceed to deal with the 

poor soil conditions south of Column Line 9 and that, therefore, Tetra Tech had no choice 

but to move forward using its best judgment in order to mitigate the resulting delays and 

impacts (R4, tab 20). This letter informed CO Hall that approximately 24 inches to 

36 inches of undercut, with infill of number 3 stone, placement of a biaxial geogrid 

fabric, and CR-6 stone, would be necessary to provide a proper subgrade. The letter 

further informed the CO that the work had commenced 3 March 2011. (Id.) 

30. On 8 March 2011, CO Hall responded to Tetra Tech's 24 January 2011 letter 

and 25 February cost proposal (R4, tab 21 ). His letter states, in pertinent part: 

This letter from the Federal government is response to your 

TTFC Letter Number: S-075 dated January 24, 2011 and 

S-089 dated Feb 25, 2011.. .. 

The Maryland National Guard and the P & C Office is hereby 

denying that "Any Differing Site Conditions" exist according 

to the above reference letters, and is refusing that an 

"Equitable Adjustment" does exist.. .. 

13 APG DPW is the Aberdeen Proving Ground Department of Public Works (tr. 3/123). 

POZ Environmental was the government's quality assurance contractor (tr. 2/278). 

CFMO stands for Construction Facilities Maintenance Officer, the staff function of 

the MDARNG responsible for building and maintaining its infrastructure (tr. 2/275). 

14 Leaking infrastructure by this point included not only the fire hydrant but perforated 

storm drains (see finding 48 et seq.). 

15 
(Id. at 1-2) 

The above letters stands [sic] on discovery ofthese conditions 

of the Haley & Aldrich report of March 4, 2010 for site visits 

on I 0 December 20 I 0 and also on the Haley & Aldrich report 

page One section 3. Report prepared by Giles Engineering. 

The P & C contract Office submits that the Contracting 

Officer, per FAR [52.]236-2, was not notified "Promptly" in 

written notice of Tetra Tech's intention to submit evidence of 

Different Site Conditions existed. 

The Haley & Aldrich report continues with the Subgrade 

Stabilization Recommendation that "A dewatering Plan" be 

in place by Tetra Tech. No "Dewatering" plan was 

implemented to date of the January 24, 2011 S-075 letter. 

In closing as the Supervisor Contract Specialist (SCS) on this 

AASF Design Build Project the government is denying "Any 

Different Site Conditions" exist. The failure to follow the 

simple directions in the RFP page 180 and the very late 

notification that "Different Site Conditions" might exist 

coupled with Tetra Tech's refusal to "Dewater" when their 

own report suggested it are some of the reasons why the 

Federal Government does not recognize TTFC Letter Number 

S-075 dated January 24, 2011 and S-089 dated Feb 25, 2011 

that "Different Site Conditions" exist. 

31. Tetra Tech responded on 29 March 2011 with a letter (S-102) containing 

a comprehensive timeline of meetings and correspondence constituting notice to the 

government of the differing site conditions, starting shortly after their discovery (R4, 

tab 25). It also addressed the CO's statements regarding dewatering, pointing out that the 

Haley & Aldrich report refers to temporary dewatering during excavation such as by 

means of sump pump, and not to dewatering as a means of permanent enhancement of the 

subgrade (id. at 3-4, see also R4, tab 8 at 24). COL Tracy, the head of the USPFO, and 

CO Hitch both testified at trial that CO Hall's assertions of lack of timely notice were 

false (tr. 2/172-73, 269). On 8 April 2011, Tetra Tech followed up (S-107) to report to 

CO Hall on the remediation measures it was taking and costs incurred to date. Again, it 

requested that the government direct it to stop if it disagreed with the actions being 

undertaken. (R4, tab 27) 

32. On 23 March 2011, Tetra Tech notified CO Hall (S-096) that upon excavation 

to subgrade elevation along the west side of the building, it had discovered poor soil 

16 
conditions similar to what had been encountered south of Column Line 9 (R4, tab 23). 

The conditions would render it unsafe to move equipment into the area for exterior facade 

work and placement of the asphalt base and pavement for the access road (id.). Mud 

mats were brought in and ultimately the area was undercut to about 24 inches down and 

backfilled with suitable material (app. supp. R4, tab 75, vol. 2 at 27 of 36). 

33. On 25 March 2011, Mr. Lipscomb of Tetra Tech received an email from 

COL Tracy responding to Mr. Lipscomb's earlier expression of concern over the 

government's rejection of Tetra Tech's cost proposal for remediation. In the email, 

COL Tracy informed Mr. Lipscomb that the "Government team" had reviewed the request 

and had determined that "site conditions have not changed." (App. supp. R4, tab 258) 

Thereafter, on 11April2011, CO Hall responded by email to Tetra Tech's 8 April 2011 

letter, stating: "Attached is the government's letter dated March 8, 2011. This letter denies 

that different site conditions exist. The area in Tetra Tech's letter S.107 is the same area 

denied as different site conditions." (R4, tab 29) CO Hall never responded to Tetra Tech's 

detailed 29 March 2011 rebuttal to his 8 March 2011 letter (tr. 11145). 

34. On 25 March 2011, Tetra Tech followed up on the leaking fire hydrant with a 

letter (S-100) to CO Hall informing him that although the water line was turned off after the 

leak was discovered, it appeared that the leak had saturated the ground under the existing 

concrete and asphalt pavement as well as adjacent grassy areas, all of which would need to 

be removed and replaced to provide a proper base for the concrete apron. Because Tetra 

Tech had received no response to its original letter of 7 February 2011, it proposed to begin 

the undercutting, followed by stone infill, no later than 4 April 2011 in order to meet the 

contract schedule. The letter noted that the cost for this work was included in Tetra Tech's 

25 February cost proposal, which had been rejected, and requested that the government 

notify Tetra Tech immediately if it did not want it to proceed with the work. (R4, tab 24) 

35. The location of the fire hydrant leak corresponds to the water found 

in Giles Boring No. 5 which was interpreted as "perched" water (finding 12). 

Mr. Matt Conologue, general superintendent for Tetra Tech at the project site until 

mid-August of2011 (app. supp. R4, tab 329 at 18, 22), testified that ifTetra Tech 

encountered natural perched water in the course of its excavations it could be isolated and 

pumped off into a retention pond, allowing construction activity to continue (id. at 51 ). 

However, as construction activities reached the fire hydrant, it was apparent that there was 

surface water and the surrounding area was being continually saturated by the leaking hydrant 

(id. at 59). Once the water was turned off, the hydrant was removed, and the water main 

leading to it was capped, the leaking ceased and the "amount of water in the excavation [was] 

reduced considerably" (id. at 60). 

36. There appeared to be a belief among some of the government witnesses 

that the fire hydrant was damaged by Tetra Tech or one of its subcontractors (see, e.g., 

tr. 3/131 ). It was unclear whether this damage was supposed to have occurred by 

jackhammering or by running into it with heavy equipment. However, Mr. Lipscomb 

17 
testified on cross-examination that personnel on site informed them that the hydrant had 

been leaking for some time (tr. 11245). Mr. Lipscomb also testified that no one from the 

government ever suggested to him while the project was going on that Tetra Tech caused 

the fire hydrant leak (tr. 1/278). No government witness with personal knowledge of the 

matter testified. Nor has the government directed our attention to any other evidence that 

would suggest the fire hydrant leak was caused by damage occurring during construction. 

Based on a preponderance of the evidence, including the Giles Report of perched water at 

Boring No. 5 in 2009, we find that the fire hydrant leak was not caused by Tetra Tech and 

that it was ongoing since at least 2009. While government solicitation documents did 

disclose perched water at Giles Boring No. 5, the leaking fire hydrant was not disclosed 

to Tetra Tech or any of the bidders on this project (tr. 1/308). Therefore, they would have 

had no way of knowing that the "perched" water was being continuously refreshed by a 

leak thereby causing the surrounding soil to be permanently saturated. 

37. On 18 April 2011, Tetra Tech notified CO Hall that it had encountered 

unsuitable conditions as it excavated into a slope at the southwest comer of the site 

(S-117). The initial description was of an unstable subgrade, with the slope falling in 

some areas, and visible seepage at the base of the slope, apparently flowing up from the 

subgrade, with flow on the order of 2-5 gallons a minute. A diagram and photos of rusty 

looking water coming up from the subgrade were attached. Tetra Tech requested a 

meeting to discuss this latest condition and requested direction. (R4, tab 33) 

38. On 23 April 2011, DPW representatives informed Mr. Conologue of Tetra 

Tech that there was a leaking water valve just outside the limits of disturbance (LOD) on 

the "Southwest boundary" of the project site and that it "had been leaking for years" 

(app. supp. R4, tab 57 at 97, tab 321at68). On 27 April 2011, Tetra Tech advised CO 

Hall by email that it had located a leaking water valve just outside the LOD, and stated 

that it was investigating the relationship of the leaking valve to the unsuitable soil 

conditions being experienced south of Column Line 9 (R4, tab 34 ). Two days later, on 

29 April 2011, it followed up with a letter to the CO (S-130) containing additional 

information: 

This newly identified (new to Tetra Tech) leak discovered on 

the East and West elevations outside the building footprint 

adds to the concerns Tetra Tech has regarding the differing 

site conditions encountered at the sub-grade level South of 

column line 9. Below is a brief description of the 

identification of this leaking water valve. 

During water valve installation being performed on 23 April 

2011, it was brought to Tetra Tech's attention by DPW that a 

leaking water valve exists just outside our LOD in the 

Southwest boundary of the project. During this conversation 

18 
with DPW, DPW advised Tetra Tech that this valve had been 

leaking for years. 

Upon discovery of this condition, we asked Haley & Aldrich 

and our civil design team to revisit the site to further 

investigate this condition to determine what impact this 

condition has on ongoing and future work. At this time, we 

do not know the full impact of this differing site condition 

and will provide further documentation as it becomes 

available. 

(R4, tab 35) The same morning, CO Hall responded by email: "Outside the contractors 

LOD, thus No Standing exists with P & Cat the USPFO" (R4, tab 36). On 2 May 2011, 

Tetra Tech responded (S-132): 

We are in receipt of your email dated April 29, 2011 and we 

request that you, as Contracting Officer for this project, 

engage with DPW to have the leaking water valve/pipe either 

replaced or shut off to prevent further soil damage within the 

LOD of this project. 

The leaking valve/pipe is a major contributor to the saturated 

soils on site and to date over $330,000 has been spent in the 

replacement of poor soil conditions south of column line 9. It 

is therefore imperative that these water leaks be eliminated in 

order not to cause any further damage and/or delays to the 

project. 

(R4, tab 37) On 4 May 2011, CO Hall responded via email: "This once again has No 

Standing with P & Cat USPFO. The area is outside Tetra Tech's LOD. No Standing 

means NO Standing." (R4, tab 38) 

39. The correspondence continued with Tetra Tech's letter response of 9 May 

2011 (S-133) (R4, tab 39). Tetra Tech indicated that it understood the CO's position to 

be that the leak was not USPFO's problem or concern, but that it (Tetra Tech) must 

disagree. It attached reports from its two civil engineering consultants, Timmons Group 

and Urban Engineering, and its geotechnical engineering consultant, Haley & Aldrich, 

and summarized the conclusions of the reports: 

[I]t appears that the water line in the vicinity of the south west 

comer outside of our property line has been leaking for a 

substantial period of time. This leakage has been confirmed 

verbally by DPW. All three Engineering firms agree that 

from their observations the leaking water is artificially 

19 
elevating the groundwater table around the site and is 

traveling northwest, either through the aggregate I sand 

backfill of the water main or in a sandy layer of dirt. As the 

water enters the site it is currently discharging out of the cut 

slope making the slope difficult to stabilize and impacting the 

construction activities in this area. 

(Id. at 1) Tetra Tech concluded its response by stating that no further work would be 

done in the area until the leak had been eliminated and clear direction received from 

USPFO on how it was to proceed. It requested a meeting with USPFO and the client to 

discuss options for proceeding and any information or documentation USPFO required to 

support the claim of differing site conditions. (Id. at 2) 

40. Urban Engineers observed the following: 

Upon walking the site within the LOD and outside the LOD, 

and analyzing previous data and photographs from other 

pre-construction or survey site visits, it is my opinion that the 

existing water main or existing valves are leaking water and 

the water that is leaking is then traveling along the 

aggregate/sand backfill of the water main to the southwest 

excavation slope where the hydrostatic pressure of the water 

is then causing the slope to fail and washout daily. 

(R4, tab 57 at 112) Urban Engineers' conclusion was based on the following factors 

summarized from their report: 

1. At the western most PVC pipe near the baseball field, 

water originating from below ground was overflowing the top 

of the pipe due to hydrostatic pressure. The normal 

groundwater level at that location is several feet below grade, 

yet surface water at this location has been present for a long 

time. The ground surface was generally dry in other areas. 

2. The location of the standing surface water to the west of 

the LOD and the southwest comer of the project lines up with 

the east-west water main. There are three distinct areas along 

the water main alignment where standing water was seen and 

has occurred for a long time, based on the differences 

between the vegetation in those areas vs. the surrounding turf. 

3. Visual inspection of the excavation slope indicated that 

the water was coming from behind the excavation slope and 

hydrostatic pressure was building up due to the flow of water. 

20 
If the source were groundwater, it would rise up and 

hydrostatic pressure on either side of the slope would be 

balanced. 

4. DPW has previously indicated that the existing water 

main pipes leak in the vicinity of the project. A leaky pipe or 

valve could add up to thousands of gallons daily into the 

surrounding soils. The water will travel along a path of least 

resistance along the aggregate or backfill materials near the 

valves and pipes, to the surface or to a location where the 

pressure is less, such as the southwest comer of the project 

where excavation was occurring. 

(Id. at 112-13) The Timmons Group agreed with the above observations and 

conclusions, and recommended that the water main be repaired; otherwise, the water 

would continue to discharge through the cut slope, making it difficult to stabilize and 

adversely affecting construction on the site (id. at 114-15). Haley & Aldrich also visited 

the site and concluded: 

(Id. at 116) 

[I]t is probable that a water line to the southwest of the 

construction activities is leaking, which has contributed to 

artificially elevated/perched groundwater in the southwest 

comer of the site. Given the artificially elevated groundwater 

levels relative to the proposed site grading, the construction 

of the slope does not appear to be feasible under the 

requirements of the current construction drawings and 

specifications. Slope drainage options, such as underdrains 

and chimney drains are likely required to construct the slope 

if the groundwater level is not lowered. 

41. Tetra Tech's Mr. Allison testified that it made sense that the leaking valve, 

even located at some distance from the project boundary, caused the soupy subgrade soils 

south of Column Line 9. He noted that the leaking valve was at a higher elevation and 

the water line ran directly toward the project site, so that the water from the leak would 

naturally run downhill and travel through the pipe bed, which normally consists of a 

trench filled with stone and/or gravel that water can travel freely through. (Tr. 1/338-41) 

Mr. Allison also testified that he reviewed the solicitation and there was no mention of 

the leaking valve (tr. 1/341 ). 

42. At the 12 May 2011 progress meeting, Tetra Tech brought up the subject 

of the leaking water in the southwest comer of the project. Present at the meeting 

was COL Charles Schulze ofMDARNG. COL Schulze contacted DPW the same 

21 
morning and asked for their help in locating and fixing the water leak. (App. supp. R4, 

tab 270) The leak was fixed by noon on 13 May 2011 (app. supp. R4, tabs 271-73). 15 

Mr. Richard Bandyl 6 testified that he personally fixed it (tr. 3/179). As a result, the area 

south of Column Line 9 began drying out toward the end of May and Tetra Tech was able 

to resume work in early June (tr. 1/187). However, additional areas requiring undercut 

and backfill continued to be encountered. On 26 August 2011, Tetra Tech notified CO 

that it had discovered unsuitable soils during excavation to subgrade along the west 

parking lot (S-168) (R4, tab 50). The condition required undercutting of approximately 

one foot and backfilling with stone in an area of roughly 4,800 square feet (id.). Tetra 

Tech advised it would be filing a claim for the extra work (id.). 

43. Citing the testimony of Mr. Bandy, the government argues that the water in 

the saturated, unsuitable soils that Tetra Tech encountered did not come from leaking 

infrastructure. The government's proposed finding of fact (PFF) 120 states: 

Mr. Bandy testified under oath that he personally and 

repeatedly tested the water that appellant alleged was coming 

from leaking infrastructure contemporaneous with [sic] 

appellant's claims of encountering problems. Mr. Bandy 

tested the water appellant claimed was leaking from 

underground infrastructure for chlorine, fluoride, and its pH 

value. His tests found no presence of chlorine or fluoride in 

the water. The pH values came back so low that Mr. Bandy 

concluded that the water he tested was not drinking water. 

(Tr. 3/134-35; gov't br. at 27) Contrary to the government's proposed "fact," Mr. Bandy, 

who was responsible for the maintenance of the underground water utilities at the project site, 

testified that from September of 2009 to June of 2012, he was called out to the site five or six 

different times (tr. 31128). Only one of these times involved testing water at a suspected leak 

location, although there were multiple tests at that one location (tr. 3/133-34 ). 

44. Mr. Bandy testified that he was called for some water that was coming out of 

a bank, somewhere close to SL 096 (west side of new building addition north of Column 

Line 9 (tr. 3/132; R4, tab 293). He also testified that the testing occurred toward the 

end of construction (tr. 3/134). He tested the water half a dozen times but it did not 

contain chlorine or fluoride, and had too low a pH to have come from site water utilities 

(tr. 3/139-40). Upon further questioning, it became apparent that Mr. Bandy's water test 

15 Although he was copied on the 13 May 2011 emails (app. supp. R4, tabs 271-73) 

reporting that the leak had been fixed, the CO responded on 16 May to 

a related request for information from Tetra Tech with this reiteration: "Once 

again this issue has No Standing with contracting" (R4, tab 40). 

16 Mr. Bandy at the time was the Chief of the Buildings and Structures Branch of the 

Operations and Maintenance Division ofDPW at Aberdeen (tr. 31125). 

22 
was conducted in a different location and more than a year after Tetra Tech reported and 

remediated the unsuitable soil conditions caused by the leaking valve and the leaking fire 

hydrant: 

Q Okay. So you're say [sic] that further east of the 

berm area, the water was clear. Is that your recollection? 

A Where I took my samples, we were getting clear 

water. I could not sample rusty water like this.£ 171 I mean, 

how was I, I couldn't, it's not going to turn purple when it has 

chlorine in it. It's already red. 

Q Okay. So you agree with the water coming, that's 

being depicted at 309.13 and 309.14, is in fact rusty water. 

A According to these pictures, yes, ma'am. 

Q Okay. And can you --

A But now I don't know where that water came from. I 

mean --

Q That water that was coming off the berm depicted 

in 309.13 and 309.14 was never tested. Is that your 

testimony? 

A I could not test that rusty, red water. I have no way 

to do that. 

(Tr. 3/189-90) 

JUDGE O'SULLIVAN: Okay. I have a couple of 

questions, Mr. Bandy. 

THE WITNESS: Yes, ma'am. 

JUDGE O'SULLIVAN: The water test that you 

conducted in the area of SL 096, which is obscured up there 

right now but we --

THE WITNESS: Yes. 

JUDGE O'SULLIVAN: Yes. So tell me again when 

it was you conducted those tests. 

THE WITNESS: I believe it was sometime towards 

the end of the construction, when they were installing that 

roadway. I think the hangar portion of that was pretty much 

done. 

JUDGE O'SULLIVAN: All right. 

17 The rusty water is depicted in the photos that accompanied Tetra Tech's initial 18 April 

2011 notification to CO Hall (finding 37; R4, tab 309). 

23 
THE WITNESS: It was towards the end of the 

construction period. But what the exact timeframe was, I'm 

not 100 percent sure. 

JUDGE O'SULLIVAN: Okay. Can you approximate 

a time period? 

THE WITNESS: I would say it was probably the 

spring of 2012 maybe. 

JUDGE O'SULLIVAN: Okay. April, May 2012. 

THE WITNESS: Yes. 

JUDGE O'SULLIVAN: Maybe. 

THE WITNESS: Somewhere in there. 

(Tr. 3/200-01) It is thus clear from Mr. Bandy's own testimony that contrary to the 

government's assertion, Mr. Bandy did not test water from any of the leaking 

infrastructure that is at issue in this appeal. 

45. The government also offered its expert, Mr. Weikel, for the proposition that a 

water leak did not cause the unstable subgrade at the southwest corner of the project. 

Mr. Weikel opined that his observation of the area in question in 2014 indicated that the 

slope was not saturated and to his knowledge no repair work had been completed, 

therefore the water encountered could not have been from a leak (app. supp. R4, tab 312, 

iii! 44, 52). On cross-examination it became apparent that the government had not 

informed him.that the leak had been repaired on 13 May 2011 (tr. 5/111-13). 

46. Dr. Meehan, appellant's expert witness, testified that in his opinion the bad 

soil conditions Tetra Tech encountered at the project site were caused by water from 

numerous instances of leaking infrastructure (tr. 3/53). 

4 7. Based on a preponderance of the evidence, the Board concludes that the 

saturated and unstable subgrade soils Tetra Tech encountered in the southwest corner of 

the project were caused by water from leaking infrastructure which was not disclosed to 

Tetra Tech or any of the bidders by the government in the solicitation documents. 

Perforated Storm Drainage Pipes 

48. One of the issues discussed at the 18 February 2011 meeting, in addition to 

the soils south of Column Line 9 and the leaking fire hydrant, was a perforated storm 

drain going from the southeast corner of the airfield to the northeast, running underneath 

the proposed concrete apron and taxiway. Mr. Conologue, Tetra Tech's project 

superintendent, testified that he discovered the first perforated pipe when, during 

excavation in the area, the soils could not pass a proof roll test and were determined to be 

unsuitable. As part of his investigation of the cause of the soil saturation, he opened the 

grate and visually inspected the pipe with a flashlight. (Supp. R4, tab 329 at 71-72) 

After digging test pits that confirmed the pipe was indeed perforated, he notified CO Hall 

24 
of that fact by email on IO February 2011. Color photos of the pipes were attached to the 

email. (App. supp. R4, tabs 243, 309.15-17) 18 The same day, after CO Hall inquired 

whether there were holes in the pipe or just bad rust, POZ Environmental, the 

government's quality assurance (QA) contractor, reported to CO Hall: 

Ed, I just looked down the pipe from the inlet by the asphalt, 

fligh[t] area. The pipe runs north under the asphalt and south 

to the pond. North under the asphalt is a coorigated [sic] pipe 

with concrete on the inside of the pipe to make it smooth with 

no perforation as far as I could see. South from the inlet to 

the pond is a [corrugated] pipe that is perforated, on top of 

being in poor shape and rusted, as far down as I could see. 

There are holes drilled throught [sic] the pipe to the south of 

the asphalt with no concrete in the pipe. 

(App. supp. R4, tab 243) 

49. On 23 February 2011, Tetra Tech sent the CO a follow-up letter on the subject 

(S-086), to which it attached a draft letter from Urban Engineers explaining why the 

perforated pipe was a concern (R4, tab 18). Rather than carrying storm water away from 

the site, the perforated pipe was contributing to the saturation of the site, a particularly 

bad idea underneath the to-be-constructed concrete apron and taxiway where, even if 

Tetra Tech were able to stabilize the subbase to allow for airfield pavement construction, 

the continued saturation would shorten the lifespan of the subbase and adversely affect 

the pavement above (id. at 2-3). The engineers recommended replacing the pipe within 

the limits of work with solid piping lined with polyethylene as well as undercutting the 

existing unsuitable subgrade and replacing it with suitable materials (id.). 

50. Shortly thereafter, during excavation on 29 March 2011 to install a structure 

atop another existing 21" storm drainage pipe, the pipe was discovered to be perforated 

and discharging water beginning adjacent to the east wall of the existing hangar building 

and running east underneath the area where the new concrete apron was to be constructed. 

Tetra Tech notified the CO of its discovery in a letter dated 31 March 2011 (S-104). 

(R4, tab 26) This was the second storm drainage pipe discovered to be perforated and, as 

before, Tetra Tech recommended that the pipe not be left in place. Tetra Tech noted that 

at the time it submitted its cost proposal, it believed the leaking fire hydrant caused the 

poor soils in the area, but it was apparent that the storm drain, which collected runoff 

from the flight line's concrete and asphalt surfaces, was discharging storm water into the 

subgrade and was contributing to the poor soils. It planned to begin remediation along the 

east side of the hangar beginning the week of 4 April 2011 and requested prompt direction 

18 The photos depict an old, rusted, large diameter corrugated metal pipe with a solid top 

and a bottom that had holes drilled in it to allow stormwater to infiltrate subsurface 

soils beneath the pipe (app. supp. R4, tab 309 at 15-17; tr. 1/73). 

25 
on how to handle the perforated pipe. (Id.) On 8 April 2011, Tetra Tech wrote the CO 

again to inform him that upon further inspection the pipe was found to contain trapped 

sediment material which could adversely affect the site permit from the MDE (S-110) 

(R4, tab 28). It requested that the CO investigate along with DPW Environmental and 

APO (id.). 

51. On 11 April 2011, despite having received confirmation of the existence of 

perforated pipe in response to his own inquiry from POZ, the government's QA firm, 

CO Hall responded to Tetra Tech's letter regarding the second perforated pipe with the 

following email: 

(R4, tab 30) 

Am returning letter s.110. The government Does Not have a 

perforated pipe. The government has Storm pipe down at the 

Weide Airfield but there does not exist a perforated pipe. 

If Tetra Tech is submitted [sic] a letter please need to clarify 

what you are submitting the letter for. Believe it was many 

Years ago that a Storm pipe was installed at the Airfield and 

that Storm pipe installed was never perforated. The Storm pipe 

installed was installed with weep holes to gather ground water. 

52. On 7 June 2011, Tetra Tech followed up on its 23 February 2011 notification to 

CO Hall regarding the first discovered perforated pipe (S-146) (R4, tab 41). In its letter, 

Tetra Tech noted it had received no direction from the CO to stop its remediation work 

since that time, and updated the CO on the remediation work it was performing to stabilize 

the subgrade under the to-be-constructed east concrete mooring pad and asphalt taxiway. 

Based on testing by Haley & Aldrich, it was determined that soil cementing rather than 

undercutting followed by geogrid fabric could be used to achieve a satisfactory degree of 

stabilization at a lesser cost. (Id.) Therefore, Tetra Tech informed CO Hall that it would 

be proceeding accordingly and that the estimated additional direct cost would be $85,000 

(id.). On the next day, Tetra Tech sent the CO a list of priority items awaiting direction 

from the CO to be discussed at the next progress meeting. At the top of the list was the 

perforated pipe at the east concrete mooring pad and asphalt taxiway. Tetra Tech noted 

that it needed a "working plan with Schedule from USPFO" and a "stop work order for 

work above and surrounding the drainage pipe to be replaced." (R4, tab 42) The next 

morning Tetra Tech received the following email from CO Hall: "Mr. Lipscomp, [sic] As 

Contracting has stated couple times previously there exists No Perforated Pipe Thus the 

item mentioned On the list Will Not be Entertained" (R4, tab 43). 

53. On 20 June 2011, Tetra Tech notified CO Hall that an adjacent area under the 

east concrete apron next to the east side of the building would be stabilized with soil 

26 
cement at an additional direct cost of approximately $29,000 (S-149) (R4, tab 44). To 

this notice, CO Hall responded via email: 

Mr. Lipscomp, [sic] 

The government has denied that different site conditions 

exist. This was cited in previous letters to Tetra tech 

Facilities Construction. 

Therefore any cost that Tetra Tech states will be the burden of 

Tetra Tech Facilities Construction. 

The government reserves the right to examine the Fraudulent 

Claims Section in the FAR. 

(R4, tab 45) Tetra Tech viewed this communication as a threat (tr. 11193). Mr. Lipscomb 

responded the same morning: 

Ed, TTFC's letters are issued to document and notify USPFO 

of current events concerning differing site conditions we have 

encountered. We believe we are entitled to be compensated 

for these conditions under the contract. We therefore want to 

make sure USPFO has the same information in a timely 

manner that we have in order to verify and examine these 

conditions. 

(R4, tab 46) To this, CO Hall responded, also the same morning: "Rick, This has been 

denied. Thus the contract officer will pursue the Fraudulent Claim process which may 

have or will have Financial impact on Tetra Tech Facilities Construction." (R4, tab 4 7) 

Tetra Tech viewed this as another threat, but did not stop giving notice to the government 

(tr. 11196). 

54. Effective 8 July 2011, CO Hitch issued Modification No. P00008 (Mod 8), 

providing a priced contract line item number for replacement of the perforated storm 

drain discovered and reported in February 2011 (R4, tab 49). Only the portion of the 

perforated drain that would run under the concrete and asphalt runway to be constructed 

by Tetra Tech was replaced. As COL Tracy explained, "if we did not replace that pipe 

prior to it being paved and then a pad put over it, if it had to be replaced in the future, 

we'd have to tear all that up and it would cost us a lot of money." (Tr. 2/272-73) The 

remaining perforated drain piping was not replaced (tr. 11200). 

55. On 22 September 2011 Tetra Tech discovered yet more saturated subgrade 

soils when excavating for the north mooring pad and notified CO Hall by letter dated 

26 September 2011 (S-178) (R4, tab 52). Its engineers (Haley & Aldrich) deemed the 

subgrade unsuitable to support a concrete pad and recommended undercutting, 

installation of geogrid fabric, and replacement with stone (id.). By this time, Tetra Tech 

27 
had paved over approximately 10,000 square yards (about two acres) of what had 

theretofore had been open field, resulting in increased runoff into perforated storm drain 

that had not been replaced, and which ran directly underneath the location of the north 

mooring pad (tr. 1/201 ). Tetra Tech sent a follow-up letter (S-195) on 30 November 

2011, reporting that it had performed the undercuts in the north mooring pad area from 

15-19 November 2011 (R4, tab 54). Mr. Lipscomb testified that the area was stabilized 

after the undercutting, but there was a period of rain that destabilized the area again, 

requiring more undercutting before a suitable subgrade material could be installed. The 

issues in this area were caused by the perforated drain pipe that allowed water from 

runoff to saturate the area below grade and destabilize the subgrade soils. (Tr. 1/202-03) 

56. The perforated pipes were shown on the site utility plan ( 197 4 drawings 

included in the solicitation package) as storm drains with no indication that they were 

perforated (app. supp. R4, tab 192; supp. R4, tab 329 at 69). Mr. Lipscomb testified that 

Tetra Tech would not have included the existing storm drains in its SWPPP if it had 

known they were perforated (tr. 1/71-74). Mr. Conologue, upon viewing a document 

depicting a storm drain, would assume absent indications to the contrary that the pipe, 

being for water transfer, was a solid pipe (supp. R4, tab 329 at 71). Dr. Meehan testified 

that a geotechnical engineer would assume that stormwater drains on a drawing were 

solid, absent an indication to the contrary (tr. 3/113-14). Drawings expressly indicating 

that the storm drains in question are perforated, dated 8 October 1941, were first 

produced by the government in discovery in this appeal (app. supp. R4, tab 190). 

57. Although one section of the perforated storm drain first reported in February 

of 2011 was replaced after Mod 8 issued in July 2011, it had in the meantime continued 

to saturate the subgrade underlying the new concrete and asphalt (Far East Mooring Pad 

and Asphalt Pavement) to be constructed by Tetra Tech, and the remaining perforated 

sections continued to saturate the subgrade in other areas, including the North Transient 

Pad, all of which required remediation either by undercut and backfill, or in less 

severely affected areas, by means of soil cementing. The areas remediated are designated 

SL 146, SL 155, SL 178, and SL 195 on the site map (app. supp. R4, tab 293). The 

remediation methods employed are described in Tetra Tech letters S-146 (R4, tab 41 ), 

S-155 (R4, tab 48), S-178 (R4, tab 52), and S-195 (R4, tab 54). 

58. The second-discovered perforated storm drain, which was not replaced, 

contributed to the saturated conditions encountered along the east side of the hangar, 

designated as SL 149 and SL 146 on the site map (app. supp. R4, tab 293), the 

remediation measures employed in this area consisted primarily of soil cementing, as 

described in Tetra Tech letters S-149 (R4, tab 44), and S-146 (R4, tab 41). 

28 
Should Tetra Tech Have Expected Shallow Groundwater Due to a High Water Table or 

Other Natural Causes? 

The government's defenses against Tetra Tech's claim depend primarily on 

establishing that Tetra Tech encountered, and should have expected to encounter, shallow 

groundwater whatever the cause might be. We have already found that the Giles Report 

did not warn of saturated soil, but told bidders they could expect stiff constructible soils 

with close to optimum moisture content for compaction (finding 17). However, since the 

government argues that Tetra Tech encountered shallow groundwater due to a high 

natural water table or adverse weather, we make findings with regard to these contentions 

below. 

Natural Water Table 

59. The Giles Report estimated water table depth at 7-11 feet below ground 

(finding 5). The boring logs indicate that water was encountered 11 feet down at Boring 

No. 1, no water was encountered at Boring No. 2 (terminated at 16 feet), water was 

encountered 14.5 feet down at Boring No. 3, water was encountered 9.5 feet down at 

Boring No. 4, perched water at 1.2 feet down was encountered at Boring No. 5, 19 and no 

water was encountered at Boring No. 6 (terminated at 15 feet). Thus, the Giles Report 

estimate of the location of the water table was a rather conservative projection from its 

boring results. (R4, tabs 2, 74 at 503-08; tr. 3/34) 

60. Haley & Aldrich agreed with Giles Engineering regarding the likely depth of 

the water table at the site. Mr. Derrick Shelton, P.E., the geotechnical engineer who 

oversaw Haley & Aldrich's geotechnical investigation, testified: 

[I] knew that from a construction standpoint, for them to 

encounter that true water table, they'd have to excavate their 

excavations would have to be in the 10 to 15 foot range, and 

we weren't expecting any excavations that deep -

Q Okay. Now had you believed that the water table 

was one foot below ground, what type of construction 

recommendations would you have made, sir? Would they 

have been different than what you recommended in your 

report? 

A They would be significantly different. For water, if 

the true water table was that shallow, we'd have to reevaluate 

19 Boring No. 5 was in close proximity to the location of the leaking fire hydrant 

discovered by Tetra Tech (gov't PFF ii 13; R4, tab 2 at 502, tab 70 at 527). 

29 
the foundation system that we put in. We'd have to 

reevaluate how they would actually perform all the 

excavations throughout the site. And that wasn't the case. In 

our report we put some specific recommendations in there to 

cover how they excavated. And we clearly said that you 

might encounter some water in your deeper excavation that 

you could control with limited specifics, small sumps. 

Especially for utilities because utilities are usually the deeper 

of the excavations onsite. So if it was a true high 

groundwater table, we would have had to reevaluate our 

entire report. 

(Tr. 3/218-19) 

61. Appellant's expert Dr. Meehan testified that, as opposed to perched water, the 

natural water table is a continuous level of water at some elevation (tr. 3/25). If one were 

to dig down into the water table itself, water would fill the hole up to the level of the 

water table (tr. 3/26). Soils at the level of the water table cannot be described as "stiff'' 

(tr. 3/30). "Groundwater" is an inclusive term used to describe water in the ground, 

whether it is beneath or above the elevation of the water table (tr. 3/28). 

62. Appellant's witnesses testified that the problems with saturated soils 

encountered south of Column Line 9 could not have been caused by cutting into the water 

table because, after digging underneath the saturated soil, they found firm, stable, suitable 

subsurface soil. Mr. Joseph Gray, Tetra Tech's quality control manager on the project, 

testified: 

Q Okay. Now what was your view as to whether or 

not you cut into the water table? 

A I did not think we hit the water table. 

Q I would like for you to explain to the Court, sir, 

why it was your belief that you all had not hit the water table. 

A The water table, in my past experience, is usually 

pretty uniform and consistent in elevation. When we put 

wells into the ground, we put numerous wells at a site, and 

then we go and measure the elevations. And they would, the 

differences in the elevations would be in hundredths of a foot, 

tenths of a foot at the most. We weren't hitting the water or 

any kind of moist soil at the north end. Then we go a little bit 

to the other end and now it's moist soil. So if it's down at the 

south end, it should be up at the north end. 

Q Okay. Now when you're, if you're excavating 

based on your experience, and you cut into a water table, 

what happens? 

30 
A The water, the excavation would fill with water, 

either slowly or fastly, depending on the nature of the aquifer. 

Q Okay. Now did that happen here? 

A No. 

Q And based on your experience, if you cut out, let's 

say you hit the water table. And you cut out two to three feet 

undercut, do you reach dry soil? 

A No. 

Q Why not? 

A The water table's going to continue to come into the 

excavation. 

Q And were you, did Tetra Tech actually undercut in 

some areas? 

A We undercut in a lot of areas, yes. 

Q Okay. So when you undercut and you took that bad 

soil away, what would be below it? 

A Well the way that we had to construct, we had to 

undercut down to a firm soil that was suitable and then come 

up from there. If we were in a water table situation we never 

would have hit firm soil. Not in the water table anyway. 

Q Right. Now would you, did you all encounter dry 

or drier or firm or stiff soils below that undercutting? 

A Yes. In the south end of the site, we were able to 

dig through the soil that was unsuitable and get down to dry 

soil that was suitable. And that's what we brought our stone 

up off of. 

Q Okay. Is that consistent with having hit a water 

table, sir? 

A No, it's not. 

(Tr. 2/77-80) Tetra Tech's design manager, Mr. Allison, testified similarly: 

Q Based upon what you saw, based upon your 

experience, what is your view, as to whether or not Tetra 

Tech had cut into the water table, sir? 

A We did not believe it was the water table. We 

didn't think we were anywhere close to the water table. 

Q And what is the -- why do you [say] that? Explain 

to the Court, why you think you all never hit the water table. 

31 
A Because the water would still be trying to achieve 

its natural level, despite the excavation that went on, and you 

don't see that there. 

There were many holes we drilled out there that didn't 

find water at all. Many of the Giles holes didn't even find 

water. 

Q Okay, now, Mr. Lipscomb testified about the 

possible soils remediation methods. One was cementing. 

One was doing an undercut of going in and cutting out two, 

three, five feet, whatever it was of those bad soils, and that's 

what was done. 

What kind of remediation methods would have been 

required, had Tetra Tech actually cut into the water table? 

A I don't know that you could have just remediated it 

on the spot. You would have had to change your whole 

process. 

Q Okay. 

A But that was truly permanent water table. 

Q Will soil cementing resolve cutting into a water 

table? 

A No. 

Q Will cutting out the soil and just putting in new soil 

remediate cutting into a water table, sir? 

A No. 

(Tr. 11296-98) Haley & Aldrich's Mr. Shelton agreed: 

And what I recommended to Tetra Tech is, let's dig 

some small test pits. Let's see how deep this problem is. 

Does it extend 15 feet down or is this an isolated area? And 

that's exactly what we did. And we realized it's the soft, 

saturated zones typically were 24-inch, 36-inches thick. And 

you remove the soupy material, the soft material, and there 

was nice, firm ground beneath it. And coincidentally we 

wrote recommendations on how to treat the soil. And that's 

what the recommendation said, excavate 24 inches, maybe a 

little bit deeper depending on how, what depth you find firm 

soil. 

Q But if Tetra Tech had hit the water table and then 

undercut 2 feet, would that solve the problem of having hit 

the water table? 

A No. I mean, if you had hit the water table and you 

excavated 2 feet, you'd have standing water in the bottom of 

the excavation. And that's no[t] what we had. 

32 
Q Okay. Now there have been some assertions in this 

proceeding, this litigation, I believe by the government's 

expert that what Tetra Tech should have done, based upon the 

soil borings is they should have known and they should have 

implemented a site-wide dewatering plan for 6 to 8 months to 

basically permanently lower the water table. What is your 

view of that option, sir? 

A That sounds like an option that you would perform 

ifthe water table were truly one foot down, or very close to 

the ground surface. Our site didn't have that, and it would 

have not necessarily addressed the problem which we had 

was isolated zones of soil at a particular depth that were just 

soft and saturated. 

(Tr. 3/222-24) Dr. Meehan concurred that the natural water table did not cause the soil 

conditions encountered by Tetra Tech: 

(Tr. 3/44) 

[Y]ou know if you look at the field evidence they excavate 

out the muck and they don't see any ground water seeping in. 

I talked about my bathtub example. If they take out that soil 

the water is going to seep in and return to its natural 

elevation. After they mucked out these holes okay, at the 

bottom elevation things are firm and stable and that is what 

they are basing their you know ground improvement options 

off of from that point. There is no evidence of water coming 

in there. There is no evidence of that ground water table 

returning to its natural elevation seeping in and I think that is, 

in addition to kind of the boring logs, that is a strong example 

of field evidence where you look and you see and it's not 

happening. That is a very strong piece of evidence. 

63. The government's expert witness, Mr. Weikel, stated that the water table 

"could be" as high as one foot down based on the boring logs (tr. 5/134), but also 

conceded that Tetra Tech did not encounter the natural water table when it excavated the 

retention ponds (approximately I 0 feet down) or when it began excavating for the new 

addition (tr. 5/125-26). The government did not present any credible evidence that the 

soupy, unsuitable soils encountered by Tetra Tech during excavation were a result of 

cutting into the natural water table. 

64. The Board finds that (1) given the information supplied by the government in the 

Giles Report, Tetra Tech had no reason to anticipate that it would encounter the natural water 

33 
table during excavation on the project; and (2) the soupy soils it encountered and remediated 

during construction did not in fact result from cutting into the water table. 

Adverse Weather 

65. CO Hitch testified that it was her view that the Haley & Aldrich report had 

warned that the contractor might encounter unsuitable soils such as it encountered south 

of Column Line 9 "if we had bad weather." She further stated that at the time Tetra Tech 

began excavation "we were into bad weather because they didn't get their permit in a 

timely manner in order to start excavation in September. They ended up starting in 

December." (Tr. 2/224) This appears to be at least part of her reasoning for denying 

Tetra Tech's differing site conditions claim (tr. 2/223-24). The government also makes 

this assertion in its brief, but cites to the Giles Report warning that "it might be necessary 

to remove or stabilize the upper 6 to 12 inches (or more) of soil due to adverse weather, 

which commonly occurs during late fall, winter, and early spring. At least some 

over-excavation and/or stabilization of unstable soil should be expected if construction is 

during or after adverse weather." (Gov't br. at 36) (citing R4, tab 70 at 523) The 

government asserts, without citation to the record: "Appellant was largely responsible 

for starting excavations late because it did not get the required dig permit from the 

Maryland Department of the Environment" (gov't br. at 36 n.4). 

66. The record does not support the government's assertion. Following extended 

review (Tetra Tech first notified the government of the issue on 9 February 2010), Tetra 

Tech's proposal to change from a spread-footer to a deep foundation system for the 

building addition was finally approved and Mod 3 was issued on 30 September 2010 

(finding 21 ). The government issued the NTP for construction to begin on 21 September 

2010 (finding 22). Tetra Tech had submitted its SWPPP to the MDE in July 2010 and 

received approval on 13 September 2010 (id. n.7). Thus, when the NTP issued, Tetra 

Tech was ready to and did immediately begin site excavation for sediment and erosion 

control, to include retention ponds, silt fences, and channels to direct runoff into the 

retention ponds (finding 22). After this work was completed, Tetra Tech received a 

discharge permit from the MDE on 30 November 2010 and began site excavation on 

1 December 2010 (id.). However, despite a belief among the government witnesses that 

there had been a delay in construction caused by Tetra Tech's failure to timely file its 

Notice of Intent (NOI)20 (tr. 4/41) (Mr. Schweizer, for instance, testified to "our 

understanding" that Tetra Tech had not timely applied for the NOi (tr. 4/42)), no 

government witness appeared to have personal knowledge of the matter and the 

government has not cited to any other evidence that Tetra Tech could have begun site 

excavation any earlier than it did. Mr. Lipscomb, on the other hand, had personal 

knowledge and testified it was not true that excavation for the building had begun and 

then was stopped because of the lack of a permit (tr. 1/229). He stated there may have 

20 The Notice of Intent must be filed with the MDE to start the process of approving a 

discharge permit (app. supp. R4, tab 218, Appendix A at 2). 

34 
been a "slight delay" between finishing the erosion control activities and receipt of the 

permit from the MDE (tr. 11230). 

67. In arguing that Tetra Tech encountered "adverse weather" affecting its 

excavation activities, the government refers to this Giles Report warning: 

Site soil is moisture sensitive and will become unstable when 

exposed to adverse weather such as rain, snow, and freezing 

temperatures. Therefore, it might be necessary to remove or 

stabilize the upper 6 to 12 inches (or more) of soil due to 

adverse weather, which commonly occurs during late fall, 

winter, and early spring. At least some over-excavation 

and/or stabilization of unstable soil should be expected if 

construction is during or after adverse weather. 

(Gov't br. at 46 (citing R4, tab 70 at 523)) The government argues that by "adverse 

weather" the Giles Report is not referring to large amounts of precipitation, but rather 

to any combination of snow, ice, and freezing temperatures common in late fall, winter, 

and early spring (id.). It then cites pictures in the Rule 4 file that show that the site 

experienced some snow and ice during the December 2010 excavations (gov't br. at 47, 

PFF ~ 135). From this, the government concludes that Tetra Tech was warned by the 

Giles Report that it could experience the same adverse weather conditions that actually 

occurred (id. at 46-4 7). 

68. We do not accept the government's premise because it is not well grounded in the 

record. First, the Giles Report warns about the possibility of having to excavate primarily 

the top 6 to 12 inches of soil due to adverse weather (although not ruling out it might be 

necessary to go somewhat deeper) (R4, tab 70 at 523). This warning did not extend to the 

subgrade, as far down as six to eight feet, which is where Tetra Tech encountered the 

unsuitable, soupy soils (finding 23; tr. 1/218, 260). Second, the government has offered no 

evidence that its claimed "adverse weather" had any causal connection to the unsuitable 

soils encountered at subgrade. The evidence is that the precipitation that occurred in 

December 2010 was "sparse" and had no effect whatsoever on excavation activities. 

(Tr. 2/32-37) Indeed, as Haley & Aldrich noted in their January 2011 letter, the 

precipitation level for October, November, and December of 20 I 0 was approximately 

30% below the normal monthly average, and there were no significant precipitation events 

leading up to the December excavation operations that encountered soupy soils (finding 25). 

69. We find it unnecessary to determine an exact definition of "adverse weather" 

for purposes of this appeal. We find that the unsuitable subgrade soils encountered by 

Tetra Tech were not caused by weather of any sort and were not otherwise reasonably 

foreseeable based on the information contained in the Giles Report. 

35 
The Unsuitable Soils Requiring Remediation Were Caused by Undisclosed Leaking 

Infrastructure at the Project Site 

70. Dr. Meehan testified that in his opinion the predominant cause of the 

unsuitable subgrade soil conditions Tetra Tech encountered at the project site was the 

"significant and numerous sources of leaking infrastructure" which were not revealed 

in either the Giles or the Haley & Aldrich geotechnical reports (tr. 3/53-54). This 

conclusion was based primarily on ( 1) the proximity of the saturated soils to the leaking 

water source and/or the existence of a natural path for the water to follow from the source 

of the leak to the saturated soils; and (2) the lack of any other plausible explanation for 

the condition of the soils (tr. 3/44-47, 54-58). In his view, the soil conditions 

encountered by Tetra Tech that required remediation were materially different from the 

conditions reflected in the Giles Report (tr. 31117). 

71. The Board finds that the unsuitable saturated subgrade soils that Tetra Tech 

encountered and remediated at the project site were caused primarily by the undisclosed 

leaking infrastructure at the project site, including the ( 1) leaking valve/water main 

outside the LOD in the southwest comer of the project, (2) the two perforated storm 

drains, and (3) the leaking fire hydrant. We find that any secondary, natural sources that 

may have contributed water were insignificant in comparison. 

Tetra Tech Completes the Contract 

72. The contract completion date, as extended by Mod 3, was 5 January 2013 

(finding 21). CO Hitch stated that the contract work was complete in May of 2012, 

except for some change order work (tr. 2/108). COL Tracy testified that Tetra Tech 

completed the project early under difficult circumstances (tr. 2/300). 

The Request for Equitable Adjustment, Claim, and Final Decision 

73. On 1 June 2012, Tetra Tech submitted its request for equitable adjustment 

(REA) to the successor CO, Ms. Hitch. 21 Tetra Tech requested a total of $1,202,417 for 

the extra cost of soil remediation due to Type 1 differing site conditions. (R4, tab 58 at 6 

of 36) The enumerated differing site conditions included the leaking fire hydrant, the 

leaking water valves, perforated pipe running under the new construction area that had 

been identified as solid pipe in the drawings incorporated in the RFP, and perforated pipe 

adjacent to the construction that had been identified as solid (id. at 3 of 36). The 

enumerated cost elements were: 

21 Mr. Hall was removed as CO by the USPFO, COL Tracy, toward the end of May 2012 

(tr. 2/302-03). 

36 
WORK DIRECT OVERHEAD, TOTAL 

PERFORMED COST PROFIT, BOND 

Remove unsuitable $587,017.76 $115,157.29 $702, 175.05 

soil and backfill 

with stone 

Soil Cement $229,322.56 $44,987.00 $274,309.56 

Mud Mat for access $14,374.32 $2,819.86 $17,194.18 

road stabilization 

Geotechnical $79,103.60 $15,518.03 $94,621.63 

consulting services 

Miscellaneous $15,614.47 $3,063.14 $18,677.61 

services 

REA preparation $26,755.12 $36,871.02 $63,626.14 

costs to 5114112 

REA preparation $13,377.56 $18,435.51 $31,813.07 

cost estimated to 

complete 

TOTAL $965,565.39 $236,851.84 $1,202,417 .23 

(Id. at 6 of 36) 

74. CO Hitch apparently rejected Tetra Tech's REA on the basis of Mod 3, the 

contract modification that authorized and funded the change from a spread footer to a 

deep pile foundation for the building addition (tr. 2/183). On 5 September 2012, Tetra 

Tech resubmitted its REA as a claim (R4, tab 62). CO Hitch issued a final decision 

denying the claim on 28 November 2012 (R4, tab 63). The contracting officer's final 

decision (COFD) provides the following rationale: 

The subject claim has been reviewed and denied. The claim 

indicates that subsurface conditions encountered during 

construction excavations by Tetra Tech differed from 

conditions identified in the report by Tetra Tech's 

geotechnical firm, Haley & Aldrich. 

In reference to the Haley & Aldrich geotechnical 

investigations, the report was submitted and resulted in 

the issuance of Request for Proposal (RFP) # 11 for Deep 

Foundation due to Differing Site Conditions. The resulting 

modification P00003 was signed by both parties on 

30 September 2010. 

37 
(Id. at 1) 

The report provided by Haley & Aldrich is not the 

responsibility of the Government; therefore, the claim is 

unsubstantiated. 

7 5. CO Hitch testified at trial and answered questions regarding the reasoning 

underlying her COFD. Some representative excerpts follow: 

Q Now I want to make sure I understand something 

right, and I might have misunderstood you. But when the 

government rejected Tetra Tech's REA and claim, it was 

based on Modification 3. Correct? 

A Yes, sir. 

Q And a modification is a change to the contract, isn't 

it? 

A Yes, sir. 

Q And so the government didn't say there was no 

differing site condition. What the government said is that 

differing site conditions was covered by Modification 3. 

Correct? 

A There is another paragraph that talks about, on that 

modification, that is required by FAR. 

Q We're talking about Modification 3. 

A Mm-hmm. 

Q We' re talking about --

A (simultaneous speaking) that's on all modifications. 

Q We're talking about the waiver language. Correct? 

A The claim of the, I forget, I'd have to look at the mod, 

one of the mods to show you. It's a paragraph that, I think it's 

like paragraph 4. It's in all the modifications that we do. 

Q But in any event, I want to back up. I'm talking 

about when you issued the denial of Tetra Tech's Claim. 

A Okay. 

Q Okay? At that time you based it upon Modification 

3, a change to the contract that had already been executed. 

Correct? 

A Yes, sir. 

Q You did not dispute that there was a differing site 

condition. What you said is, that condition was covered by 

Modification 3. Correct? 

38 
A Modification 3 covered those site conditions to 

determine the deep foundation. 

Q Right. But I may not be making myself clear. 

A Okay. 

Q But the point was that those conditions that led to 

the claim were part of Modification 3 of the contract. 

Correct? 

A Based on the Haley & Aldrich report, yes. 

Q ... And it appears when I'm hearing this, the 

dispute's not whether it's a differing site condition. The 

dispute is that we've already paid for it under Modification 3. 

A Dispute is we didn't find it as a differing site 

condition. 

Q Excuse me? 

A I believe the dispute is we didn't find it as a 

differing site condition. 

Q That's not what your denial of the claim says, 

though, is it? 

A That was the determination of Modification 3, is all 

site conditions at that point in time. So it has not differed 

from Modification 3. 

(Tr. 2/206-09) 

JUDGE O'SULLIVAN: All right. So to conclude, 

your understanding is that the Haley & Aldrich report, in so 

far as it addressed the likelihood of settlement in the soil, was 

that the part that was relevant to the deep foundation issue? 

THE WITNESS: The soil conditions of that report, 

yes. 

JUDGE O'SULLIVAN: And those would be the soil 

conditions where the addition was going into the building. 

THE WITNESS: Correct. 

JUDGE O'SULLIVAN: Correct? Okay. And that 

would have been, do you remember approximately, no, that's 

okay. We don't need to ask you that. All right. So what in 

your mind is the connection between the Haley & Aldrich 

report as it relates to the deep foundation and Mod 3, which 

was signed on 30 September 2010, and the soil conditions 

that Tetra Tech encountered when it started to excavate in 

December of 201 O? 

39 
THE WITNESS: My understanding is the Haley 

& Aldrich report identified the soil conditions based on the 

testings that they had done and the different sites that they 

had taken. Okay? This was a team effort. And based on that 

discussions, okay? We had agreed that we had issued 

Modification 3. And then when the claim came in, there was, 

the site, the soil conditions were stated and what could 

happen in the Haley & Aldrich report. So it was no different 

than what was occurring. In other words, Haley & Aldrich 

had said these situations can occur and, therefore, it had not 

changed since Haley & Aldrich had issued their report. They 

identified conditions that could occur. 

JUDGE O'SULLIVAN: Did the Haley & Aldrich 

report identify the existence of unsuitable soils? 

THE WITNESS: I don't know exactly whether it did 

or not. It said that in certain conditions the soils could 

become unsuitable. It did identify that. 

JUDGE O'SULLIVAN: So it identified a possibility. 

THE WITNESS: Yes. 

JUDGE O'SULLIVAN: Which at that point had not 

occurred. 

THE WITNESS: Not at that time. 

JUDGE O'SULLIVAN: So when in December 2010 

Tetra Tech ran into unsuitable soils as they were excavating, 

how could that have given rise to the proposal for adjustment 

that led to Mod 3? 

THE WITNESS: We looked at it as though the Haley 

& Aldrich report had told them that they may run into those 

conditions if we had bad weather. And we were into bad 

weather because they didn't get their permit in a timely 

manner in order to start excavation in September. They 

ended up starting in December. 

(Tr. 2/220-24) 

This Appeal 

76. Tetra Tech filed its notice of appeal from the COFD on 22 February 2013 and 

its appeal was docketed as ASBCA No. 58568 by the Board on 25 February 2013. 

Subsequently, the Board raised a question regarding the validity of the certification of 

Tetra Tech's claim. The parties agreed to a stay of proceedings to allow Tetra Tech to 

40 
properly certify its claim and resubmit it to the CO. (Bd. corr., agreed mot. to stay dtd. 

28 May 2013) The Board subsequently docketed appellant's appeal from the CO's 

decision on the re-certified claim as ASBCA No. 58845 on 23 August 2013. The two 

appeals were then consolidated. 

DECISION 

Tetra Tech claims entitlement to an equitable adjustment to compensate it for the 

additional cost it incurred in remediating soils saturated by leaking infrastructure which, 

it asserts, constituted a differing site condition under FAR 52.236-2(a)(l) and (2) (both 

Type I and Type II). Tetra Tech also claims that the government's actions in this case 

amounted to a breach of warranty, breach of its obligation to disclose information known 

to it (leaking infrastructure, perforated storm drains) that was relevant to subsurface 

conditions at the site, and breach of the implied duty of good faith and fair dealing. 

The government contends that Tetra Tech has not established either a Type 1 or 

Type 2 differing site condition existed because it should have known before it bid, from 

the raw boring data contained in the Giles Report, that the site was saturated by 

groundwater at very shallow depths. Having known that, the government continues, 

Tetra Tech should have engaged in extensive dewatering before beginning excavation, 

and it cannot recover for expense that it incurred because it failed to do so. The 

government also disputes Tetra Tech's breach of warranty, superior knowledge, and 

breach of implied duty arguments. 

The elements of a Type I differing site condition, which FAR 52.236-2(a)(l) defines 

as "subsurface or latent physical conditions at the site which differ materially from those 

indicated in this contract," are: (1) the condition indicated in the contract differs materially 

from those encountered during performance; (2) the conditions actually encountered were 

reasonably unforeseeable based on all information available to the contractor at the time of 

bidding; (3) the contractor reasonably relied upon its interpretation of the contract and 

contract-related documents; and (4) the contractor was damaged as a result of the material 

variation between expected and encountered conditions. Optimum Services, Inc., ASBCA 

No. 58755, 15-1 BCA ~ 35,939 at 175,653-54 (citing Stuyvesant Dredging Co. v. United 

States, 834 F.2d 1576, 1581 (Fed. Cir. 1987); and Comtrol, Inc. v. United States, 294 F.3d 

1357, 1362 (Fed. Cir. 2002)). A contractor must prove these elements by a preponderance 

of the evidence. Id. 

In this appeal it is undisputed that the contractor actually encountered a large 

volume of saturated, unsuitable soils during excavation of the project site. It is also 

undisputed that the only information on subsurface conditions that the government made 

available to Tetra Tech and the other bidders before bidding was the Giles Report, which 

was Appendix B to the Phase 2 solicitation and was incorporated into the contract upon 

award (findings 2, 5). The parties disagree on what the Giles Report indicated about the 

soils at the site. 

41 
The Contract Indicated that Soils at the Site Were Suitable for Construction 

The Board has found that the Giles Report told bidders on the project to expect 

medium to stiff constructible soils with close to optimum moisture for compaction 

(finding 17). This finding is based on not only the characterization of the soils by the 

government's geotechnical engineers (Giles) but also on the data contained in the boring 

logs themselves (findings 5-16). 

Giles conducted six test borings in all. No water was encountered during drilling 

at Boring Nos. 2 (terminated at 16 feet down) and 6 (also terminated at 16 feet down) 

(findings 9, 13). Water was encountered at 9 feet down at Boring No. 4, 11 feet down at 

Boring No. 1, and 14.5 feet down at Boring No. 3 (findings 10, 11, 13). Perched water was 

encountered 1.2 feet down at Boring No. 5, but thereafter no water was encountered down 

to the 21-foot termination depth (finding 12). Based on this data, Giles conservatively 

estimated the natural water table to be approximately 7 to 11 feet below ground at the test 

borings (finding 6; tr. 3/34). 

The water content of the soil samples recorded in the Giles boring logs ranged 

from 7 to 17%. Above 10 feet, where most construction activities would take place, the 

water content did not exceed 13%. The government's expert, Mr. Weikel, testified that 

water content "in the high single digits to upper teens" for a silty clay, "in the mid-teens 

to upper teens" for "dense silts and clays," and "in the mid-teens" for dense silty clay, 

indicate that those materials are at or near saturation (findings 9-12). 22 However, his 

assertions appear to be directly contradicted by the Haley & Aldrich geotechnical report 

which determined that the optimum moisture contents for compaction at the site were 

between 8.7% and 12.2%, very close to the actual moisture contents recorded by Giles 

above 10 feet. (Finding 15) 

Mr. Weikel also stated that the Giles Report described "soft, saturated unstable 

soils" or "soils with high moisture content well above optimum and near the liquid limit" 

(app. supp. R4, tab 314 at 2). At trial he testified that saturation levels directly correspond to 

the liquid limit, which is the point at which soils begin to act like a liquid and are not 

compactable (finding 14). However, that testimony was contradicted by Dr. Meehan, who 

testified that saturation does not equate to liquid limit and that the latter can only be reliably 

determined by a laboratory test called the Atterberg limits test (id.). Haley & Aldrich did 

perform the Atterberg limits test on the samples from their test borings, and reported that the 

liquid limits for the project soils ranged from 18% for sandy silt to 51 % for clay soil (id.). 

None of the Giles test borings reported soil moisture content at these levels, nor did Giles 

describe any soil it sampled as soft, saturated, or unstable. 

22 Mr. Weikel did not cite to any authoritative source, either in his expert report or in his 

testimony, for his statements equating percentage water content in the high single 

digits or mid or upper teens with saturated soil. 

42 
Both geotechnical engineers (Dr. Meehan and Mr. Shelton) testified that the Giles 

Report in its entirety, including the raw data in the boring logs, described generally stiff, 

constructible soils with only occasional isolated anomalies such as the perched water at 

Boring No. 5. Mr. Shelton of Haley & Aldrich testified that he was surprised when he 

was called out to the site and observed the saturated soils that Tetra Tech began to 

encounter during excavation, because "I did not see anything in our soil borings or the 

Giles report that would lead me to believe that those soils would be that soft and 

saturated, as what I observed when I visited the site." (Tr. 3/221-22) Dr. Meehan 

testified that the soils in the Giles Report were "described as stiff quite frequently, 

sometimes you would see dents were medium or firm there were a few instances where 

things fell outside of that range but the predominant description of the in situ condition of 

the soils was something like medium to stiff' (finding 8). There was not a lot of soft soil 

in the Giles borings (id.), nor did the report or the boring data indicate saturated soils 

(tr. 3/24-25). Dr. Meehan also observed that the Giles and Haley & Aldrich reports were 

generally consistent and made similar recommendations with respect to constructibility 

issues, with the major difference between the two being the foundation recommendations 

for the building addition (tr. 3/24). 

We think it necessary to also address the Haley & Aldrich report here briefly since 

CO Hitch appeared to testify that Tetra Tech's claim was denied because the conditions 

encountered by Tetra Tech during excavation were conditions that had already been 

identified in the Haley & Aldrich report (and therefore were not differing site conditions): 

And then when the claim came in, there was, the site, the soil 

conditions were stated and what could happen in the Haley 

& Aldrich report. So it was no different than what was 

occurring. In other words, Haley & Aldrich had said these 

situations can occur and, therefore, it had not changed since 

Haley & Aldrich had issued their report. They identified 

conditions that could occur. 

(Finding 75) CO Hitch appeared to believe that the soil conditions indicated in the Haley 

& Aldrich report that led to the recommendation for a deep foundation were the same as, or 

related to, the soil conditions Tetra Tech encountered at subgrade that required remediation: 

Q But the point was that those conditions that led to 

the claim were part of Modification 3 of the contract. 

Correct? 

A Based on the Haley & Aldrich report, yes. 

43 
(Id.) 

Q And it appears when I'm hearing this, the dispute's 

not whether it's a differing site condition. The dispute is that 

we've already paid for it under Modification 3. 

A Dispute is we didn't find it as a differing site 

condition. 

Q Excuse me? 

A I believe the dispute is we didn't find it as a 

differing site condition. 

Q That's not what your denial of the claim says, 

though, is it? 

A That was the determination of Modification 3, is all 

site conditions at that point in time. So it has not differed 

from Modification 3. 

As we see it, there are arguably two components to this position. The first is that 

the subgrade conditions requiring remediation were not differing site conditions because 

they were identified by the Haley & Aldrich report. Both geotechnical engineers who 

testified, one of whom was the author of the Haley & Aldrich report, emphatically refuted 

this notion. But even if it were true, it would not defeat a claim for differing site 

conditions because the issue is whether the conditions encountered differed materially 

from the conditions indicated in the contract and upon which the contractor based its 

bid, not from conditions discovered after contract award. The second component is that 

Mod 3 foreclosed any additional compensation to Tetra Tech for conditions discovered 

in December 2010 because those conditions were the same or similar to the soil 

conditions that formed the basis for the modification. But, as Mr. Shelton testified, the 

Haley & Aldrich recommendation for a deep foundation, which was accepted by Mod 3, 

was based on its analysis of the settlement characteristics of the soils at depths of 20 to 

30 feet below ground, and had nothing to do with the saturated soils closer to the surface 

that were discovered during excavation (tr. 3/230-31). We conclude for these reasons 

that neither the Haley & Aldrich report, nor Mod 3, foreclose Tetra Tech's claim. 

During Excavation Tetra Tech Encountered a Large Quantity of Saturated Unsuitable 

Soils Requiring Remediation 

What conditions were actually encountered by the contractor is a question of fact. 

Arundel Corp. v. United States, 515 F.2d 1116, 1123 (Ct. Cl. 1975). Tetra Tech 

presented testimony from several witnesses and documentary evidence of soft, saturated, 

"soupy" soils in several discrete areas encountered during excavation that required 

undercutting and backfill or soil cementing in order to be able to proceed with the work 

(findings 23-27, 32, 34-35, 38-42, 48-50, 52-53, 55). There is also ample evidence in the 

record of leaking infrastructure either in close proximity to the problem soil or situated so 

as to facilitate the transport of substantial quantities of water continuously to areas where 

44 
saturated soils were encountered (id., findings 70-71 ). Tetra Tech timely notified the 

government of these conditions and afforded the government the opportunity to 

investigate (findings 23-27, 32, 34-35, 38-42, 48-50, 52-53, 55). The government does 

not dispute the actual conditions encountered by Tetra Tech, the timeliness of the 

notifications, or the necessity of the remediation measures employed. 

The Conditions Indicated in the Contract Differed Materially from Those Actually 

Encountered 

The government's defense relies on the proposition that the soft, soupy, saturated 

soils encountered by Tetra Tech during excavation for the project did not materially 

differ from the conditions disclosed by means of the Giles Report prior to bidding. Thus, 

the government's geologist, Mr. Weikel, testified at length that the test borings in the 

Giles Report depicted soils at or near saturation and very near, if not at, their liquid 

limit (findings 9-12, 14). Mr. Weikel in his expert report relied on the data from Haley 

& Aldrich Boring No. 8 and the Haley & Aldrich recommendation to design for 

groundwater at one-foot below the surface to assume that the site had a very high natural 

water table (one-foot below ground level) and opined that Tetra Tech should have 

planned to institute a site-wide dewatering system well in advance of attempting 

excavation (finding 16). The government does not contest that Tetra Tech encountered 

leaking infrastructure but argues either that its effects were disclosed in the Giles Report 

or that its contribution to conditions at the site was insignificant compared to the totality 

of groundwater present from other sources. 

The government's arguments are not supported by the preponderance of the 

evidence. We have found as fact that the Giles Report told bidders to expect medium to 

stiff constructible soils with close to ideal moisture content for compaction and warned 

neither of saturated soupy soils nor leaking infrastructure (finding 17). We have also 

found as fact that the saturated unsuitable soils were not caused by a high natural water 

table or by precipitation, but by the undisclosed leaking infrastructure (findings 46-4 7, 

57-58, 64, 68-69). Tetra Tech has carried its burden of proving that the conditions it 

actually encountered differed materially from the conditions indicated in the contract. 

The Actual Subsurface Conditions Were Not Reasonably Foreseeable 

The contract contained a provision in General Conditions (3.04, Site Investigation) 

obligating the contractor to satisfy 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 and/or available from the using agency" 

(finding 2). A companion clause, 3.05, Conditions Affecting the Work, required the 

contractor to "ascertain the nature and location of the work and the general and local 

conditions, which can affect the work or the cost thereof' (id.). 

45 
Tetra Tech conducted a site visit along with other bidders during which the 

bidders were limited to visual observation-no invasive investigation was allowed. Tetra 

Tech did not observe anything during the site visit that would have led it to question the 

characterization of subsurface conditions contained in the Giles Report. (Finding 7) Nor 

does the government argue that it could have or should have. Rather, the government 

argues that the conditions actually encountered at the site were reasonably foreseeable 

based on the contents of the Giles Report, with three variations: (1) the "very moist" soil 

conditions Tetra Tech encountered were as reported by Giles, which characterized the 

soil as "moist" or "moist to wet" (gov't br. at 45); (2) the Giles Report warned against the 

effects of adverse weather which Tetra Tech encountered when it excavated in December 

of2010 (id. at 46-47); and/or (3) the Giles Report data warned of soil at or near the liquid 

limit, "dangerously close to saturation" so that a reasonable contractor would expect soil 

instability (id. at 48). We have already found that ( 1) the saturated unsuitable soils 

encountered by Tetra Tech differed materially from the medium to stiff constructible 

soils described in the Giles Report; (2) the saturated soils requiring remediation were not 

caused by weather but by leaking infrastructure that was not disclosed to the bidders, 

including Tetra Tech; and (3) the moisture contents reported in the Giles Report did not 

equate to saturated or unstable soil but to constructible soils with close to optimum 

moisture content for compaction. 

The government also argues that Tetra Tech withheld a key piece of information 

by not informing the government that the Haley & Aldrich report boring results were 

affected by a major snowstorm (of which certainly all government personnel on site were 

well aware) until it ran into the saturated soils (gov't br. at 48-49). The relevance of this 

line of argument to the foreseeability issue is not clear to us, but in any event we do not 

find the assertion that Tetra Tech "withheld" key information to be supported by the 

record. Finally, the government asserts that the soil conditions encountered by Tetra 

Tech were "entirely foreseeable" given the site's close proximity to the Chesapeake Bay 

and the fact that excavation commenced in the winter (id. at 49). This assertion is not 

further explained or supported except by the statement that the boring logs contained in 

the two geotechnical reports showed the presence of "high groundwater." The 

government has not established any connection between either proximity to the 

Chesapeake Bay, or the season, and the saturated subgrade conditions at the site. 

Therefore, we do not further address this assertion. Tetra Tech has proven by a 

preponderance of the evidence that the conditions it encountered at the project site were 

not reasonably foreseeable. 

Tetra Tech Reasonably Relied on the Contract Indications of Subsurface Conditions 

To prevail on a differing site conditions claim, the contractor must have 

reasonably relied on the contract representations as to subsurface conditions. H.B. Mac, 

Inc. v. United States, 153 F.3d 1338, 1345 (Fed. Cir. 1998); Optimum Services, 

15-1 BCA ii 35,939 at 175,657. Reliance is unreasonable when a contractor has 

independent reason to know a representation may not be accurate. International 

46 
Technology Corp. v. Winter, 523 F.3d 1341, 1352 (Fed. Cir. 2008); Optimum Services, 

15-1 BCA ii 35,939 at 175,657. The fact that representations as to subsurface conditions 

are labeled as "for information only" or that the contract contains a requirement that the 

contractor perform further subsurface investigation after award does not deprive a 

contractor of the right to rely on the government's pre-contract representations. Metcalf 

Constr. Co. v. United States, 742 F.3d 984, 995-96 (Fed. Cir. 2014). 

The government concedes that all Tetra Tech had when preparing its proposal was 

the Giles Report (gov't br. at 39). However, it argues that Tetra Tech had the opportunity to 

"adjust its proposal" on the basis of the more detailed Haley & Aldrich report which the 

contract required it to obtain for purposes of "planning, design, quantity and cost estimating, 

and determining the const11Jction feasibility of the project" (gov't br. at 39-40). The 

government does not explain how it thinks Tetra Tech could have "adjusted its proposal" 

after contract award based on the Haley & Aldrich report, given Haley & Aldrich's 

conclusion that its boring data was skewed by snowmelt from a significant snowfall and the 

Giles data was more representative of the normal site conditions. Nor can this argument be 

squared with the government's rejection of the REA that Tetra Tech submitted after it 

discovered the unsuitable subgrade soils. Ultimately, the government's argument in this 

regard devolves into a repetition of the propositions, which we have already rejected, that 

both the Giles and Haley & Aldrich reports warned of soils "at or near saturation," and that 

Tetra Tech's December 2010 excavation activities were affected by adverse weather (gov't 

br. at 40-43). The government also observes that Tetra Tech lacked any prior experience 

working at Aberdeen Edgewood, but fails to demonstrate the relevance of that fact to the 

issues before us. 

We find that Tetra Tech has established by a preponderance of the evidence that it 

reasonably relied on the contract indications that the soils at the site were medium to stiff 

constructible soils. 

Tetra Tech Suffered Injury as a Result of the Differing Site Conditions 

Tetra Tech has shown by a preponderance of the evidence that the need to 

remediate unsuitable soils caused it unanticipated expense to undercut, remove the bad 

soils and backfill with suitable fill material in the most severely affected areas, to soil 

cement in other areas, to construct temporary access roads, and to incur other 

unanticipated expenses including additional geotechnical consulting fees, and the costs of 

REA preparation (findings 26, 29, 31-32, 34, 52-53, 55, 57-58, 70). 

The government argues that Tetra Tech incurred the extra expense of soil 

remediation not as the result of differing site conditions, but as a result of its failure to 

heed the alleged warnings in the geotechnical reports and conduct comprehensive 

dewatering prior to commencing construction (gov't br. at 50-53). Further, it states that a 

"reasonably prudent contractor lacking experience working at Aberdeen Edgewood 

should have planned for more systematic dewatering to be safe and to account for any 

47 
additional soil moisture in this specific geographic area" (id. at 51 ). No evidence of 

record is cited to support this last statement. Indeed, there is no evidence in the record 

that anyone actually involved in the project, government or contractor, ever opined to 

Tetra Tech that systematic dewatering was called for prior to excavation.23 

The government's expert, Mr. Weikel, did opine that a site-wide dewatering plan 

should have been instituted six to eight months prior to commencing construction 

(tr. 51101, 107). However, Mr. Shelton of Haley & Aldrich testified that site-wide 

dewatering would make sense only if the water table was very close to the ground 

surface, which was not the case at the project site, and would not necessarily address the 

conditions that Tetra Tech encountered, which were "isolated zones of soil at a particular 

depth that were just soft and saturated" (finding 62). 

We find that Tetra Tech has proved by a preponderance of the evidence that it was 

injured by the differing site conditions. It is entitled to recover its additional costs of 

performance caused by the Type I differing site conditions. 

Alternate Grounds for Recovery 

Tetra Tech advances alternate grounds for recovery: Type II differing site conditions, 

breach of warranty of specifications, breach of contract by reason of failure to disclose 

leaking infrastructure, and breach of implied duty of good faith and fair dealing. Tetra Tech 

does not seek additional amounts under any of these alternate theories. (App. br. at 155-65) 

Having found Tetra Tech entitled to its increased costs of performance due to Type I differing 

site conditions, we do not address its alternate theories of recovery. 

23 The sole exception could be CO Hall, who in his correspondence rejecting Tetra 

Tech's REA alleged both that there had not been timely notification of the 

differing site conditions and that Tetra Tech had not instituted a dewatering plan in 

accordance with the Haley & Aldrich recommendation (finding 30). Tetra Tech in 

response pointed out that the recommendation was for temporary dewatering 

during excavation as needed, which was done, not dewatering as a means of 

permanently enhancing the subgrade (finding 31 ). 

48 
CONCLUSION 

The appeal is sustained and is hereby remanded to the parties for determination of 

the quantum of adjustment. 

Dated: 15 November 2016 

~~4zt MARK N. STEMPLER 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

-Attachment 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

. /"\ ' /'\ -·---------- / .J--!--r- - /1>/ I i \_ 

~S~CKLEFORD Administrative Judge 

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. 58568, 58845, Appeals of 

Tetra Tech Facilities Construction, LLC, rendered in conformance with the Board's 

Charter. 

Dated: 

49 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals 
ACRONYM GLOSSARY 

APO-Aberdeen Proving Ground 

CFMO-Construction Facilities Maintenance Officer 

OPW-Oepartment of Public Works 

LOO-limits of disturbance 

MORANG-Maryland Army National Guard/Maryland Military Department 

MDE-Maryland Department of the Environment 

QA-quality assurance 

SWPPP-Stormwater Pollution Prevention Plan 

USPFO-U.S. Property and Fiscal Officer