ARMED SERVICES BOARD OF CONTRACTAPPEALS
Appeals of

-- ) ) Tetra Tech Facilities Construction, LLC ) ) Under ContractNo. W912K6-09-C-0002 )

APPEARANCES FORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 58568, 58845

Michael L. Burnett, Esq. PatriciaM. Rosendahl, Esq.

Greenberg Traurig, LLP Houston, TX
Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPTAhsan M. Nasar, JA Brian E. Bentley, Esq. CPTMeghan E. Mahaney, JA

Trial Attorneys

OPINION BYADMINISTRATIVEJUDGE O'SULLIVAN

Tetra Tech Facilities Construction, LLC (hereinafterTetra 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 SupportFacility at Aberdeen Proving Ground, Maryland. Only entitlement is at issue. We havejurisdictionunderthe Contract Disputes Act, 41 U.S.C. §§ 7101-7109. We decide entitlement in favor ofTetra Tech.

FINDINGS OF FACT

Solicitation and ContractAward

1. SolicitationNo. W912K6-09-R-OOO 1was issued by the United States Army Property and Fiscal Office (USPFO) on 31 March 2009. 1 Itcalled for the design and construction ofan 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 atwo phase "design-build"process under FARPart 36.3 (id. at 4). As described in the solicitation:

1A number ofacronyms 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 submittheirpast performance, basic technical approach and capability information initially for review and consideration by the Government. Followingthe review, evaluation, and rating of these proposals, the Government intends to selectthree, but

no less thantwo andnotto exceed five, ofthe highestrated contractors to receive thetechnical requirements package and to participate in the Phase Twoprocess ofthis solicitation.

In Phase Two, the selected off erors wouldbe given the opportunityto submittechnical and cost proposals and compete for contract award. (Id. at 3, 4) TetraTech was selected for Phase Two and was awarded ContractNo. W912K6-09-C-0002 (the contract) in a total
amount of$22,564,852 on 23 September2009 (R4, tab 1; app. supp. R4, tab 72). The contractwork consisted ofrenovation ofan existing 11,500 square foot (SF) facility; excavation and construction ofa 19,769 SF addition complete with loading dock, storage area, access road, and building access apron; expansion ofthe hangar for an additional 33,455 SF heated and 32,755 SF unheated hangar space; and additional hardscape consisting ofaircraftparkingpads, 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 includedthe FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984) clause, whichprovides:

(a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officerof(1) subsurface or latentphysical conditions atthe site which differmaterially from those indicated in this contract; or (2) unknownphysical conditions at the site, ofan unusual nature, which differmaterially from those ordinarily encountered and generally recognized as inhering in work ofthe characterprovided for in the contract.
(b) The Contracting Officer shall investigate the site conditions promptly afterreceiving the notice. Ifthe conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, orthe time required for, performing any part ofthe workunderthis contract, whether

ornot changed as a result ofthe conditions, an equitable adjustment shall be made underthis clause and the contract modified in writing accordingly.

(c) No request by the Contractor for an equitable adjustment to the contract underthis clause shall be allowed,

2unless the Contractorhas given the written notice required; provided, that the time prescribed in (a) above for giving written notice may be extendedby the Contracting Officer.
(d) No requestby the Contractor for an equitable adjustment to the contract for differing site conditions shall be allowed ifmade after final payment underthis contract.
(Id. at 16) In addition, the General Conditions ofthe contract included the following provisions:

3.04 

### SITE INVESTIGATION: The Design-Builder acknowledges thatthe 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 ofmaterials, availability oflabor, water, electricpower, roads and uncertainties ofweather, river stages, tides or similarphysical conditions at the site, the conformation and conditions ofthe ground, [and] the character ofequipment and facilities neededpreliminaryto and during prosecution of the work. TheDesign-Build Teamfurther acknowledges that ithassatisfieditself as to the character, qualityandquantity of surface andsubsurfacematerials orobstacles to be encounteredinsofaras this information is reasonably ascertainable from an inspection of thesite, includingall exploratory workdone bythe Governmentand/oravailable from the usingagency. Any failure bytheDesign-Build Team to acquaintitself with the available information willnot relieve itof responsibility for estimatingproperly the difficulty

orcostof successfullyperformingthe work.

...
3.05 

### CONDITIONSAFFECTING THE WORK: The Contractor/Design-Build Team shall be responsible for havingtaken steps reasonably necessary to ascertain the nature and location ofthe work and the general and local conditions, which can affect the work orthe costthereof. 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 ofthe Phase Two solicitation) required the successful bidderto arrange for a

3subsurface exploration and evaluation and analyze the information relative to the site and subsurface conditions "as they pertain to projectrequirements." Further:

[T]he data and analysis shall be adequate, correct and complete for the intended purposes ofplanning, design, quantity and cost estimating, and determining the construction feasibility ofthe 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 ofthe 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 projectthat would have to be approved by the governmentbefore the actual construction work could begin. TetraTech was required to submit designs to the government for review and approval at various stages ofcompletion ofthe design documents. Only afterthe 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 preparedby 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 ofthe 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 matterwas at the surface atthetest borings. The topsoil was measuredto be

2The 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 ofthe Army and was the intended end user ofthe facility (tr. 2/120-21; app. supp. R4, tab 193). USPFO is part ofthe MDARNG (tr. 2/120-21). 4(Id. at-491) between about 4 and 8 inches thick. The native soil belowthe topsoil generally consisted offirm silty sand and stiffto very stiffsilty clay and sandy clay. Itis estimated thatthe water table was about 7 to 11 feet below-ground at thetest borings with perched water at about 1

### Yi feet below-ground when the [exploration] was conducted.

The proposedbuilding will be a two-story structure. Itis assumed to be a masonry structure that will nothave a basement or otherbelow-ground spaces. Based on the assumed first floor elevation

...a spread footing foundation designed for a 3,000 poundper square foot (psf) maximum, net, allowable soil bearing capacity is recommended for the proposedbuilding.

6. Giles reported Material Conditions in Section 6 ofits report. The topsoil was characterized as consisting ofsilty clay and sandy clay with trace organic matter in layers 4 to 8 inches deep. Belowthat:

The native soil below the topsoil at Test BoringNo. 1 generally consisted offirm silty fine sand to at leastthe 16 foot test boring termination depth. The native soil at Test Boring No. 2 generally consisted ofstiffsilty clay to at least the 21 foot test boringtermination depth. The native soil at the remaining test borings generally consisted ofstiffto very stiffsilty clay and sandy clay and firm clayey sand, silty sand, and sandy siltto 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 watertable 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 becomeperched above the watertable.

The estimated water table depth is only an approximation based

on the colors and water content ofthe retained soil samples, and water levels that were encountered at the test borings. The



### 5(Id. at 495) actual watertable depth may be higher or lowerthan estimated. Ifa 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 ofinformationprovidedby the government about subsurface conditions on whichbidders could base theirproposals (tr. 4/31-32). While a site visit was conducted priorto 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 ofthe Giles Report's characterization ofthe soils at the project site was addressed by several witnesses. Mr. RobertAllison, TetraTech's design manager, testifiedthat after looking at the report and the boring logs and the description ofthe soils as firm or stiff, he had no concerns about theproject from a design perspective (tr. 1/290). Norwas he concerned about eitherthe amount ofwater or its elevation. Mr. Richard Lipscomb, appellant's seniorprojectmanager, testified: "He [Giles] described the soils as being firm, stiffsoils that we could work offofand 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. ChristopherMeehan, 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 sandparticles are larger, silt is smaller, clay is

3 Dr. Meehan holds a tenured Associate Professorposition in the DepartmentofCivil and Environmental Engineering at the University ofDelaware. He has both a Masters and a Ph.D. degree in civil engineering from VirginiaTech 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 ofprofessional organizations at the national level, organizing conferences and serving in an editorial capacity for publication ofconference proceedings; and doing technical review of journalpapers and conference articles. (Tr. 3/7-10) He has published numerous articles on topics including the behavior and porosity ofsaturated soils, ground improvementtechnologies, and compaction control (tr. 3/12). He also has extensive work experience doing construction quality
assurance, inspection ofsoils, soil sampling and classification, ground water assessments, and inspection ofsite conditions (tr. 3/13-14). He was notpresent at the site during construction and was not involved with the project in any way while it was ongoing. 6(Tr. 3117-18) smallerthan that so you have kind ofa trend in gradation. There [were] many classifications ofwhatwe call intermediate classifications for example a silty clay is a clay thathas a significantpercentage ofsilt mixed in with it. Sometimes it's mixed uniformly, sometimes it is kind of present in layers. Soyou saw significant stratigraphy in layering ofthe site, a lot ofvariability in grain size and a lot ofgeneral variability in properties. In terms ofthe actual consistency ofthe materials they were described as stiffquite frequently, sometimes you would see dents were medium or firm there were a few instances wherethings fell outside of thatrange butthe predominant description ofthe in situ condition ofthe soils was something like medium to stiff.

Q Didyou see a lot ofsoft soil in these borings sir? A No I did not. 

### Q Nowwhywhen you say we like medium, stiff, firm, why do you like that? A Generally it exhibits good engineering behavior[-] the soils tendtobe stronger, they tend to be less compressible and sowhenwe put load onthem 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 putTetra Tech on notice that it would encounter soils at ornear saturation. 5 Mr. Weikel testified thatthe boring log for Giles BoringNo. 2, which characterizedthe 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 theU.S. Army Corps ofEngineers (tr. 5/7). Hehas worked on eight projects at APG overthepast 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 ofsubsurface conditions but not on design orconstruction recommendations (tr. 5/27-28, 30-31). Mr. Weikel based his opinions primarily on the rawboring data in the Giles and Haley & Aldrich reports and did notreview the daily projectrecords (tr. 5/170). Hewas notpresent 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. 7as a silty clay, showed "awater content in the high single digits to upperteens" which "begets material that is near saturation." (Tr. 5/38-39) The Board notes thatthe log for Giles BoringNo. 2 recorded moisture contents from 7% to 14%, the latterbeing 15 feet down, and characterizedthe soils as "damp" or "moist," not saturated. Nowaterwas encountered during drilling, which was terminated at 16 feet down. (Supp. R4, tab 70 at 529)

10. Withrespectto Giles BoringNo. 3, which was terminated at 21 feet down, Mr. Weikel testified thatthe log showed water content of 12%to 13%, and statedthat water content "inthe mid-teens to upperteens," "fordense silts and clays," means "you hit the saturation limit for that material" (tr. 5/39-40). The Board notes thatthe log for Giles BoringNo. 3 characterizedthe 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" oras saturated. Each soil layerwas 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 BoringNo. 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 Boardnotes thatthe log for Giles BoringNo. 4 encountered water at 9 feet down. The water content ofthebottom-most layer ofsilty clay was recorded

as 15% at 15 feet down and 13% at 20 feet down, and this layer was characterized as "wet." Nowater content was recorded for the sandy layer above it starting at 8.5 feet down, but it

was characterized as "moistto 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 BoringNo. 5, terminated at 21 feet down, Mr. Weikel testified thatpercent water content in the mid- to upper teens "fordense clays" indicates those materials are at ornear saturation (tr. 5/44). The Board notes that the log for Giles Boring No. 5 showedperchedwater at 1.2 feet down, but no waterwas encountered thereafter down to the 21 foot termination depth. 6 The water content ofthe soil ranged from I0% at 5 feet down to 17% at 10 feet down and thereafter, to 21 feet down, was between 14% and 16%. Nowater 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 BoringNos. 1or 6. Water contentwas not recorded for these borings (supp. R4, tab 70 at 528, 533). The log for BoringNo. 1 (terminated at 16 feet down) showsthat waterwas encountered at 11 feet down and

6 According to appellant's expert, Dr. Meehan, perched water is waterthat 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 ortransient condition (id.), although it can remain in a location for sometime (tr. 3/27-28). 8describes the soils as "moist" above four feet and "moistto wet" below four feet (id. at 528). The log for BoringNo. 6 (terminated at 16 feet down) shows no waterwas 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 ofthe 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 ofwaterto the volume ofvoids. So 100 percent saturation, a completely saturated soil, all ofthe

...void space is filled with water. So when you say saturation, I'm assuming you're talking about 100 percent saturation, notthe degree ofsaturation. Q Yes A So, yes, and then liquid limit is

...a standardizedtest that we do to kind ofmeasure thatproperty thatyou 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 testthat'srun.
(Tr. 3/76) Haley & Aldrich, Inc., Tetra Tech's geotechnical engineering firm, reported the results ofits subsurface investigation in a report dated 4 March 2010. Its report included the results ofthe Atterberg limits tests it conducted on the project soils.7 The liquid limits ranged from 18% for a sample ofsandy silt to 51% for a sample ofclay soil. Sixteen of 19 sampleresults yielded a liquid limit of22% or above. (App. supp. R4, tab 57 at 264)

15. The soils water contentrecorded by the Giles Report ranged from 7% to 17%. The highest value of 17% is recorded in the log for BoringNo. 5 at 10 feet down. Above 10 feet, the highestpercentage 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 contentrequired for successful compaction" (app. supp. R4, tab 103 at 2).

7Neither Giles Engineering norMr. Weikel conductedAtterberg limits testing. 916. 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 groundwaterwas encountered at one foot below ground level, and performed a series ofcalculations assuming that groundwaterwas at the same level for the entire new building excavation. Based on that assumption, he concluded that TetraTech should have known that it would be excavating 8 feet into groundwater and would need to remove nearly 300,000 gallons ofwater 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 1foot belowthe surface to opine that TetraTech should have planned to institute a site-wide dewatering system 6 to 8months in advance ofattempting excavation (id.). However, Mr. Shelton ofHaley & Aldrich testified to the fact that their boring results were affected by the melting ofa significant layer ofsnow that had fallen in late December, causing surface waterto infiltrate directly into the boring holes and causing higherwater levels in

some cases than would be expected in stabilized conditions (tr. 3/212-13). Mr. Shelton also testified that Haley & Aldrich recommended that TetraTech assume groundwater at
one foot below ground level only for the design ofcertain elements that "couldbe impacted ifthewater 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 standpointwe knew that waterwasn'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 encounterthe watertable (id.).

17. The Board finds that the Giles Report did not warn ofsoils "atornear saturation" nor ofsoils that were at or neartheir liquid limit, suchthat bidders would reasonably expect soil instability. Rather, the Giles boring logs and geotechnical evaluation thereoftold bidders on the project to expect (and thus the contract indicated) medium to stiffconstructible soils with close to ideal moisture content for compaction. The record discloses no otherreason Tetra Tech should have anticipated anything but medium to stiffconstructible 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 athorough subsurface exploration and evaluation (finding 3), Haley & Aldrich conducted an evaluation ofthe site's subsurface soil and groundwater conditions and developed recommendations for the design and construction ofthe structure's foundations. Haley & Aldrich performedtheir investigation from 24 December2009 to 7January 2010 and issued theirreport on 4 March 2010. (R4, tab 8) Priorto the issuance oftheir report, they advised TetraTech that soil borings taken underneath the footprint ofthe hangar addition indicated the need for a deep foundation system ratherthan the shallow spread footing foundation system recommended in the Giles Report. Their concern, briefly stated, was thatbuildingthe 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 ofalignment. Tetra Tech passed this information on to the USPFO CO on 9 February 2010, attaching a draft version ofthe

10Haley & 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 submittedby 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 bearingpressure of 3,000 psfwouldbe suitable for support ofthe structure

.... The results ofour 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 thatthe anticipated settlements are notwithin tolerable limits for the structure and supporting infrastructure. Furthermore, it is our understanding that the proposedhangar will abut the existing hangar, which is supported on a deep foundation system. In order to maintain similarperformance characteristics, the foundation system ofthe proposed hangar shouldperform similarly to the foundation system that supports the existing hangar. Consequently, we recommend thatthe hangarbe supported on a deep foundation system consisting ofauger-castpiles.

(R4, tab 8 at 15)

20. On 23 April 2010, the USPFO contracting specialistrequested that Tetra Tech provide the government withpricing for the change from a spread footing foundation system to a deep foundation system using 12-in. diameter cast-augerpiles (app. supp. R4, tab 80). On 7 May 2010, the government issued Modification No. POOOO 1to 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 ofwork 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'srecommendation 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 contractperiod ofperformance from 6 November 2012 to 5January 2013 was signed by the USPFO CO

on 30 September 2010. Mod 3 stated that "Verbal approval" for the contractorto proceed with related design work had been given 20 August 2010. (R4, tab 11 at 2) Tetra Tech completedthe deep foundation design in September of2010 (tr. 1/69).

11Subsurface Saturated Soils South ofColumn 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 ofretention (or detention) pondsto a depth ofapproximately 10 feet, as well as installation ofsilt fences and excavation ofchannels to direct surface waterrunoffinto 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 putin 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), TetraTech began site excavation for the new building on 1December 2010.9

23. Excavation work started on the north side ofthe project site next tothe 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 onlypenetratetwo feet deep (tr. 1/79). The area north ofColumn Line 9 10 was excavatedwithout any issues down to one foot above subgrade (subgrade for the building addition was six to eight feet below original grade) in the first halfofDecember2010 (tr. 2/74, app. supp. R4, tab 75, vol. 2 at 10 of36). On or about 16 December, however, as TetraTech continued its excavation south ofColumn Line 9, it encountered saturated, unstable soil conditions. As described by Mr. Lipscomb: "the further south weprogressed the worse the soil conditions got. When they cutthe first couple layers down at the south end it was fine. Butthen as we got deeper it got
worse

.... Andthen it gotto thepointwhere they actually couldn'teven continue." (Tr. 2/75-76) Attheprogress meeting held on 22 December2010, Tetra Tech notified the government ofthe possible differing site condition (R4, tab 13).

24. On 24 January 2011, TetraTech wrote CO Hall 11 enclosing a Haley & Aldrich report on the recently encountered soil conditions (R4, tab 14). The enclosedreport states in pertinentpart:

·s Tetra Tech's StormwaterPollution Prevention Plan (SWPPP) was submittedto the Maryland Department ofthe Environment (MDE) in July 2010 (app. supp. R4, tab 218) and was approved by the MDE on 13 September 2010 (id., tab 222). 9 Theparties in their briefing appearto agree onthis date but they do notprovide, and the Boardhas beenunable to find, record citations for it. 10 Rule 4, tab 293 is a map ofthe project site delineating the areas ofthe site requiring soils remediation. 

### It was prepared by Mr. Lipscomb as part ofthe REA documentation (tr. 1/40). Mr. Lipscomb testified to the location ofColumn Line 9 on this map (tr. 1/77). 11 Mr. Ed Hall succeeded Ms. Rita Carter as CO on the contract in October2010. 12[I]t is our opinion thatthe currently exposed soils are exhibitingpumping behaviorthat exceeds acceptable limits to be considered as a suitable subgrade. Furthermore, we do not anticipate thatthe subgrade soils, in their current state, can be compactedto meet specificationrequirements due to excess moisture that is trapped within the cohesive soils that underlie the site. As such, some form ofsubgrade 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 ofconditions (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 ofMarch 2010:

1. The geotechnical report included in the RFP that

was preparedby 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 contentrequired for successful compaction.

2. Duringthe subsurface investigationprogram thatwas executed by Haley & Aldrich between 24 December2009 and 7 January 2010, a significant snowstorm occurredthat delayed the investigationby approximately two weeks. By the time work resumed, temperatures were above freezing and the snowbeganto melt, causingthe subsurface soils to become saturated.

3. When comparingthe natural moisture content ofsamples tested by Haley & Aldrich to the natural moisture content ofthe samples tested by Giles, ourmoisture contents

were significantly higher. However, the difference was attributedto saturation causedby the melting snow. As such, moisture contents indicated in the Giles geotechnical report appeared to be more representative of whatto expect when excavation activities began and the subgrade soils were exposed.

12 "Pumping" is a form ofsoil instability characterizedby wave-like behaviorwhen heavy equipment moves across saturated soil (R4, tab 14 at 2 n.l). 13(R4, tab 14 at 3) Haley & Aldrich continuedby noting that since the Giles data indicated moisture contents would benearthe 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 averageprecipitation level was approximately 30%belowthe monthly average; furthermore, there have not been any significantprecipitation events leading up to orduring the current earthwork operations. Takingthis into consideration, it is highly unlikely thatthe current subgrade conditions are seasonal or have been influenced by recent weatherpatterns.

26. Nothaving received a response from CO Hall, TetraTech followed up its 24 January 2011 letterwith another letter, dated 5 February 2011, in which it informed the CO that in orderto mitigate the impact on the project schedule, it was incurring costs

as a result ofthe saturated soils south ofColumn Line 9 (R4, tab 15). Specifically, it had started construction oftwo stabilized stone access roads necessary to allowthe auger cast pile and concrete subcontractors to continue with theirwork, and had also undercut, at the direction ofthe geo tech soil engineer, several areas underneath the gradebeams between Column Lines 1-8 due to poor soil conditions (id.). Neitherthe temporary access roads

nor the soils remediation were contemplated or priced in TetraTech'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 nearthe site ofthe newbuilding, which had necessitatedpumping the surrounding areato remove excess moisture from the soil beforeproceeding with the work (R4, tab 16). It suggested a meeting with USPFO to discuss the options and any information ordocumentation needed bythe government (id.). The hydrant discovered to be leaking was scheduled to be removed during the project, and initially there was some uncertainty overwho was responsible for its maintenance. After discovering the saturated soils surroundingthe hydrant TetraTech dug a pitto start capturingthe excess water from the surrounding area. (App. supp. R4, tab 240) 

### It then beganpumpingthe water out in ordertobe 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

14include CFMO, POZ Environmental, APG DPW, USPFO, and contracting. 13 At the meeting, which Ms. Hitch attended but Mr. Hall did not, TetraTech discussed the leaking infrastructure it was encountering 14 and explained the remediation options that were available (tr. 11116-17). The governmentrequested that TetraTech submit a cost proposal for dealing with the issues thus far encountered (tr. 11119).

29. TetraTech 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 ofunsuitable soils in the areas identified to date. Tetra Tech noted that: "Given the poor soil conditions, south ofcolumn line 9, and since time is of the essences [sic] with critical path activities (auger castpiles, concrete pile caps and grade beams) we will begin replacement ofthis unsuitable fill beginning Tuesday, March 1, 2011." (Id. at 1) On 4 March 2011, TetraTech followed up with a letterto CO Hall pointing out that as ofthe date ofthe letter, no official response or direction had beenprovidedby the CO concerninghow the contractor should proceedto deal with the poor soil conditions south ofColumn Line 9 and that, therefore, Tetra Tech had no choice but to move forward using its bestjudgmentin orderto mitigate the resulting delays and impacts (R4, tab 20). This letter informed CO Hall that approximately 24 inches to 36 inches ofundercut, with infill ofnumber 3 stone, placementofa biaxial geogrid fabric, and CR-6 stone, would be necessary to provide aproper 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 TetraTech's 24 January 2011 letter and 25 February costproposal (R4, tab 21). His letter states, in pertinentpart:

This letter from the Federal government is response to your TTFC LetterNumber: S-075 dated January 24, 2011 and S-089 dated Feb 25, 2011..

..

The MarylandNational 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 ofPublic Works (tr. 3/123). POZ Environmental was the government's quality assurance contractor (tr. 2/278). CFMO stands for Construction Facilities Maintenance Officer, the stafffunction 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 etseq.). 15(Id. at 1-2) The above letters stands [sic] on discovery ofthese conditions ofthe Haley & Aldrich report ofMarch 4, 2010 for site visits

on I0 December 20I0 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, perFAR [52.]236-2, was not notified "Promptly" in written notice ofTetra 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 TetraTech. No "Dewatering"plan was implemented to date ofthe January 24, 2011 S-075 letter.

In closing as the SupervisorContract Specialist (SCS) on this AASF Design BuildProjectthe 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'srefusal to "Dewater"whentheir

own report suggested it are some ofthe reasons why the Federal Government does not recognize TTFC LetterNumber S-075 dated January 24, 2011 and S-089 dated Feb 25, 2011 that "Different Site Conditions" exist.

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

a comprehensivetimeline ofmeetings and correspondence constituting notice to the government ofthe differing site conditions, starting shortly aftertheir discovery (R4, tab 25). Italso addressed the CO's statements regarding dewatering, pointing out that the Haley & Aldrichreport refers to temporary dewatering during excavation such as by

means ofsumppump, and notto dewatering as a means ofpermanent enhancement ofthe subgrade (id. at 3-4, see also R4, tab 8 at 24). COL Tracy, the head ofthe USPFO, and CO Hitch both testified at trial that CO Hall's assertions oflack oftimely notice were false (tr. 2/172-73, 269). On 8April 2011, TetraTech followed up (S-107) to reportto CO Hall onthe remediation measures it was taking and costs incurred to date. Again, it requestedthat the government direct it to stop ifit disagreed with the actions being undertaken. (R4, tab 27)

32. On 23 March 2011, TetraTech notified CO Hall (S-096) that upon excavation to subgrade elevation along the west side ofthe building, it had discovered poor soil

16conditions similarto whathad been encountered south ofColumn Line 9 (R4, tab 23). The conditions would render it unsafe to move equipment into the area for exterior facade work and placement ofthe 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 backfilledwith suitable material (app. supp. R4, tab 75, vol. 2 at 27 of36).

33. On 25 March 2011, Mr. Lipscomb ofTetra Tech received an email from COL Tracy responding to Mr. Lipscomb's earlier expression ofconcern overthe government's rejection ofTetraTech's costproposal for remediation. In the email, COL Tracy informed Mr. Lipscomb that the "Governmentteam" hadreviewed the request and had determined that "site conditions have not changed." (App. supp. R4, tab 258) Thereafter, on 11April2011, CO Hall respondedby email to TetraTech'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 TetraTech's letter S.107 is the same area denied as different site conditions." (R4, tab 29) CO Hall neverresponded to TetraTech's detailed 29 March 2011 rebuttal to his 8 March 2011 letter (tr. 11145).

34. On 25 March 2011, TetraTech followed up on the leaking fire hydrant with a letter (S-100) to CO Hall informinghim that although the water line was turned offafterthe leak was discovered, it appeared that the leak had saturatedthe ground underthe existing concrete and asphalt pavement as well as adjacent grassy areas, all ofwhich would need to be removed and replacedto provide a properbase for the concrete apron. BecauseTetra Techhad received no response to its original letter of7 February 2011, itproposedto begin the undercutting, followed by stone infill, no laterthan 4 April 2011 in orderto meetthe contract schedule. The letternoted that the cost for this work was included in TetraTech's 25 February costproposal, which hadbeen rejected, and requested thatthe government notify Tetra Tech immediately ifit did notwant it to proceedwith the work. (R4, tab 24)

35. The location ofthe fire hydrant leak corresponds to the water found in Giles BoringNo. 5 which was interpreted as "perched" water (finding 12). Mr. Matt Conologue, general superintendent for Tetra Tech atthe project site until mid-August of2011 (app. supp. R4, tab 329 at 18, 22), testified that ifTetraTech encountered natural perchedwater in the course ofits excavations it couldbe isolated and pumped offinto 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 andthe surrounding area was being continually saturated bythe leaking hydrant (id. at 59). Oncethe waterwas turned off, the hydrant was removed, and the watermain leadingto it was capped, the leaking ceased and the "amount ofwater in the excavation [was] reduced considerably" (id. at 60).

36. There appeared to be a beliefamong some ofthe government witnesses thatthe fire hydrant was damaged by Tetra Tech or one ofits subcontractors (see, e.g., tr. 3/131). 

### It was unclearwhetherthis damage was supposedto have occurred by jackhammeringorby running into it with heavy equipment. However, Mr. Lipscomb

17testified on cross-examination that personnel on site informed them thatthe 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 TetraTech caused the fire hydrant leak (tr. 1/278). No governmentwitness with personal knowledge ofthe mattertestified. Norhas 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 apreponderance ofthe evidence, including the Giles Report ofperched water at BoringNo. 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 ofthe bidders on this project (tr. 1/308). Therefore, they would have had no way ofknowing thatthe "perched"waterwas 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 ofthe site (S-117). The initial description was ofan unstable subgrade, with the slope falling in

some areas, and visible seepage atthe base ofthe slope, apparently flowing up from the subgrade, with flow on the order of2-5 gallons a minute. A diagram and photos ofrusty looking water coming up from the subgrade were attached. TetraTechrequested a meeting to discuss this latest condition and requested direction. (R4, tab 33)

38. On 23 April 2011, DPWrepresentatives informed Mr. Conologue ofTetra Tech that there was a leaking watervalvejustoutside the limits ofdisturbance (LOD) on the "Southwestboundary" oftheproject site and that it "hadbeen 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 watervalvejust outside the LOD, and stated that it was investigating the relationship ofthe leaking valve to the unsuitable soil conditions being experienced south ofColumn 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 (newto Tetra Tech) leak discovered on the East and West elevations outside the building footprint adds to the concerns TetraTech has regarding the differing site conditions encountered atthe sub-grade level South of column line 9. Below is abriefdescription ofthe identification ofthis leaking watervalve.
Duringwatervalve installation being performed on 23 April 2011, it was broughtto Tetra Tech's attention by DPWthat a leaking watervalve existsjustoutside ourLOD in the Southwestboundary ofthe project. Duringthis conversation

18with DPW, DPW advised Tetra Tech that this valve had been leaking for years.
Upon discovery ofthis 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 ofthis differing site condition and will provide further documentation as it becomes available.

(R4, tab 35) The same morning, CO Hall responded by email: "Outsidethe contractors LOD, thus No Standing exists with P & Catthe USPFO" (R4, tab 36). On 2 May 2011, Tetra Tech responded (S-132):

We are in receipt ofyour email dated April 29, 2011 and we requestthatyou, as Contracting Officer for this project, engage with DPWto have the leaking water valve/pipe either replaced or shut offto prevent further soil damage within the LOD ofthis project.

The leaking valve/pipe is a major contributorto the saturated soils on site andto date over $330,000 has been spent in the replacement ofpoor soil conditions south ofcolumn line 9. 

### It is therefore imperative thatthese water leaks be eliminated in ordernot 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 & CatUSPFO. 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 of9 May 2011 (S-133) (R4, tab 39). Tetra Tech indicated that it understood the CO'sposition to be thatthe leak was not USPFO's problem or concern, but that it (TetraTech) 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 ofthe reports:
[I]t appears that the water line in the vicinity ofthe south west
comeroutside ofourproperty line has been leaking for a substantial period oftime. This leakage has been confirmed verbally by DPW. All three Engineering firms agree that from their observations the leaking water is artificially

19elevating the groundwatertable around the site and is traveling northwest, eitherthrough the aggregate I sand backfill ofthe water main or in a sandy layer ofdirt. As the water enters the site it is currently discharging out ofthe 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. Itrequested a meeting with USPFO and the clientto discuss options for proceeding and any information or documentation USPFO required to supportthe claim ofdiffering site conditions. (Id. at 2)

40. Urban Engineers observed the following:
Upon walkingthe 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 thatthe existing watermain orexisting valves are leaking water and the waterthat is leaking is then traveling alongthe aggregate/sand backfill ofthe water main to the southwest excavation slope where the hydrostatic pressure ofthe 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. Atthe western most PVC pipe nearthe baseball field, wateroriginating from below ground was overflowingthe top ofthe 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 ofthe standing surface water to the west of the LOD and the southwest comer ofthe 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 ofthe excavation slope indicated that the waterwas coming from behind the excavation slope and hydrostatic pressure was building up due to the flow ofwater.


### 20Ifthe source were groundwater, it would rise up and hydrostatic pressure on either side ofthe slope would be balanced.

4. DPWhas previously indicated that the existing water main pipes leak in the vicinity ofthe project. A leaky pipe or valve could add up to thousands ofgallons daily into the surrounding soils. The waterwill travel along apath ofleast resistance alongthe aggregate orbackfill materials nearthe valves and pipes, to the surface orto a location where the pressure is less, such as the southwest comer ofthe 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 throughthe 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 ofthe construction activities is leaking, which has contributedto artificially elevated/perched groundwater in the southwest

comerofthe site. Given the artificially elevated groundwater levels relative to the proposed site grading, the construction ofthe slope does not appear to be feasible underthe requirements ofthe current construction drawings and specifications. Slope drainage options, such as underdrains and chimney drains are likely required to constructthe slope ifthe groundwater level is not lowered.

41. TetraTech'sMr. Allison testified that it made sense thatthe leakingvalve,

even located at some distance from the project boundary, causedthe soupy subgrade soils south ofColumn Line 9. He noted thatthe 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 ofa trench filled with stone and/or gravel that water can travel freely through. (Tr. 1/338-41) Mr. Allison also testified that he reviewedthe solicitation and there was no mention of the leaking valve (tr. 1/341).

42. At the 12 May 2011 progress meeting, Tetra Tech broughtup the subject ofthe leaking water in the southwest comer ofthe project. Present at the meeting

was COL Charles Schulze ofMDARNG. COL Schulze contacted DPWthe same

21morning and asked for theirhelp 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 Bandyl6 testified that he personally fixed it (tr. 3/179). As a result, the area south ofColumn Line 9 began drying out toward the end ofMay and TetraTech 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 ofapproximately

one foot and backfilling with stone in an area ofroughly 4,800 square feet (id.). Tetra Tech advised it would be filing a claim for the extra work (id.).

43. Citing the testimony ofMr. Bandy, the government argues thatthe water in the saturated, unsuitable soils that Tetra Tech encountered did not come from leaking infrastructure. The government's proposed finding offact (PFF) 120 states:

Mr. Bandytestified under oath that he personally and repeatedly tested the waterthat appellant alleged was coming from leaking infrastructure contemporaneous with [sic] appellant's claims ofencounteringproblems. Mr. Bandy tested the water appellant claimed was leaking from underground infrastructure for chlorine, fluoride, and its pH value. His tests found nopresence ofchlorine or fluoride in the water. The pHvalues cameback so low thatMr. Bandy concluded thatthe water he tested was not drinking water.
(Tr. 3/134-35; gov'tbr. at 27) Contrary to the government's proposed "fact,"Mr. Bandy, who was responsible for the maintenance ofthe underground water utilities at the project site, testified that from September of2009 to June of2012, he was called out to the site five or six different times (tr. 31128). Only one ofthese 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 waterthat was coming out of

a bank, somewhere close to SL 096 (west side ofnew building addition north ofColumn Line 9 (tr. 3/132; R4, tab 293). He also testified that the testing occurred toward the end ofconstruction (tr. 3/134). He tested the water halfa 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 watertest

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 Chiefofthe Buildings and Structures Branch ofthe Operations and Maintenance Division ofDPW at Aberdeen (tr. 31125). 22was 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 ofthe 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.£171I 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 Butnow I don'tknow where that water came from. I

mean

-- Q Thatwaterthat was coming offthe berm depicted in 309.13 and 309.14 was never tested. Is thatyour testimony? A I could nottest that rusty, red water. Ihave 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 watertestthatyou conducted in the area ofSL 096, which is obscured up there right now butwe

-- THE WITNESS: Yes. JUDGE O'SULLIVAN: Yes. So tell me again when it was you conducted those tests. THE WITNESS: I believe it was sometimetowards the end ofthe construction, when they were installingthat roadway. Ithink the hangarportion ofthat was pretty much done. JUDGE O'SULLIVAN: All right.

17 The rusty water is depicted in the photos that accompanied TetraTech's initial 18 April 2011 notification to CO Hall (finding 37; R4, tab 309).

23THE WITNESS: Itwas towards the end ofthe constructionperiod. Butwhatthe 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 of2012 maybe. JUDGE O'SULLIVAN: Okay. April, May 2012. THE WITNESS: Yes. JUDGE O'SULLIVAN: Maybe. THE WITNESS: Somewhere in there.

(Tr. 3/200-01) Itis thus clear from Mr. Bandy's own testimony that contrary to the government's assertion, Mr. Bandy did nottest water from any ofthe 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 causethe unstable subgrade at the southwest corner ofthe project. Mr. Weikel opined that his observation ofthe area in question in 2014 indicated that the slope was not saturated and to his knowledge no repair workhad 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 governmenthad not informed him.thatthe 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 causedby water from

numerous instances ofleaking infrastructure (tr. 3/53).

47. Based on apreponderance ofthe evidence, the Board concludes thatthe saturated and unstable subgrade soils TetraTech encountered in the southwest corner of the project were caused by water from leaking infrastructure which was not disclosed to TetraTech or any ofthe bidders by the government in the solicitation documents.

Perforated Storm Drainage Pipes

48. One ofthe issues discussed at the 18 February 2011 meeting, in addition to the soils south ofColumn Line 9 and the leaking fire hydrant, was a perforated storm drain going from the southeast corner ofthe airfield to the northeast, running underneath the proposed concrete apron and taxiway. Mr. Conologue, TetraTech'sproject superintendent, testified that he discovered the first perforatedpipe when, during excavation in the area, the soils could not pass a proofroll test and were determined to be unsuitable. As part ofhis investigation ofthe cause ofthe soil saturation, he opened the grate and visually inspected the pipe with a flashlight. (Supp. R4, tab 329 at 71-72) After digging testpits that confirmed the pipe was indeed perforated, he notified CO Hall

24ofthat fact by email on IO February 2011. Colorphotos ofthe pipes were attached to the email. (App. supp. R4, tabs 243, 309.15-17) 18 The same day, after CO Hall inquired whetherthere were holes in the pipe orjustbadrust, POZ Environmental, the government's quality assurance (QA) contractor, reported to CO Hall:

Ed, Ijustlooked down the pipe from the inlet by the asphalt, fligh[t] area. The pipe runs north underthe asphalt and south to the pond. North underthe asphalt is a coorigated [sic] pipe with concrete on the inside ofthe 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 sentthe 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). Ratherthan carrying storm water away from the site, the perforatedpipe was contributing to the saturation ofthe 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 ofthe subbase and adversely affect the pavement above (id. at 2-3). The engineers recommended replacing the pipe within the limits ofwork with solidpiping 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 waterbeginning adjacent to the eastwall ofthe existing hangar building and running east underneath the area where the new concrete apron was to be constructed. Tetra Tech notified the CO ofits 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. TetraTech noted that at the time it submitted its costproposal, it believed the leaking fire hydrant caused the poor soils in the area, but it was apparent thatthe 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. Itplannedto begin remediation along the east side ofthe hangar beginning the week of4 April 2011 and requested prompt direction

18 Thephotos depict an old, rusted, large diameter corrugated metal pipe with a solid top and a bottom that had holes drilled in it to allow stormwaterto infiltrate subsurface soils beneath the pipe (app. supp. R4, tab 309 at 15-17; tr. 1/73). 25on how to handle theperforatedpipe. (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 DPWEnvironmental and APO (id.).

51. On 11 April 2011, despite having received confirmation ofthe existence of perforatedpipe in response to his own inquiry from POZ, the government's QA firm, CO Hall responded to TetraTech's letterregarding the secondperforatedpipe with the following email:

(R4, tab 30) Amreturning letter s.110. The governmentDoes Nothave a perforatedpipe. The governmenthas Stormpipe down at the Weide Airfieldbutthere does not exist a perforatedpipe.

IfTetraTech is submitted [sic] a letterplease need to clarify what you are submittingthe letter for. Believe it was many Years ago that a Stormpipe was installed at the Airfield and that Stormpipe installed was neverperforated. The Storm pipe installedwas installed with weep holes to gather ground water.

52. On 7 June 2011, TetraTech followed up on its 23 February 2011 notification to CO Hall regarding the first discovered perforatedpipe (S-146) (R4, tab 41). In its letter, Tetra Tech noted it had received no direction from the COto stop its remediation work since thattime, and updated the CO on the remediation work it was performingto stabilize the subgrade underthe to-be-constructed east concrete mooring pad and asphalttaxiway. Based on testing by Haley & Aldrich, it was determined that soil cementingrather than undercutting followed by geogrid fabric could beused to achieve a satisfactory degree of stabilization at a lesser cost. (Id.) Therefore, TetraTech informed CO Hall that it would be proceeding accordingly and thatthe estimated additional direct cost wouldbe $85,000 (id.). On the next day, TetraTech sentthe CO a list ofpriority items awaiting direction from the COto be discussed at the next progress meeting. Atthe top ofthe list was the perforatedpipe at the east concrete mooring pad and asphalt taxiway. TetraTech noted that it needed a "workingplan 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 Contractinghas stated couple times previously there exists No Perforated Pipe Thus the item mentioned On the list Will Notbe Entertained" (R4, tab 43).

53. On 20 June 2011, TetraTechnotified CO Hall that an adjacent area underthe east concrete apron next to the east side ofthe building would be stabilizedwith soil

26cement at an additional direct cost ofapproximately $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 Tetratech Facilities Construction. Therefore any cost that Tetra Tech states will be the burden of Tetra Tech Facilities Construction.

The governmentreserves the right to examine the Fraudulent Claims Section in the FAR.

(R4, tab 45) Tetra Tech viewed this communication as athreat (tr. 11193). Mr. Lipscomb responded the same morning:

Ed, TTFC's letters are issued to document and notify USPFO ofcurrent events concerning differing site conditions we have encountered. We believe we are entitled to be compensated for these conditions underthe contract. We therefore wantto make sure USPFO has the same information in a timely

mannerthat 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 officerwill pursue the Fraudulent Claim process which may have or will have Financial impact on Tetra TechFacilities Construction." (R4, tab 47) Tetra Tech viewed this as anotherthreat, but did not stop giving notice to the government (tr. 11196).

54. Effective 8July 2011, CO Hitch issued Modification No. P00008 (Mod 8), providing a priced contract line item number for replacement ofthe perforated storm drain discovered and reported in February 2011 (R4, tab 49). Only the portion ofthe perforated drain that would run underthe concrete and asphalt runway to be constructed by Tetra Tech was replaced. As COL Tracy explained, "ifwe did not replace thatpipe priorto it beingpaved and then apadput over it, ifit had to be replaced in the future, we'dhave to tear all that up and it would cost us a lot ofmoney." (Tr. 2/272-73) The remainingperforated 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 mooringpad and notified CO Hall by letter dated 26 September2011 (S-178) (R4, tab 52). Its engineers (Haley & Aldrich) deemed the subgrade unsuitable to support a concrete pad and recommended undercutting, installation ofgeogrid fabric, and replacement with stone (id.). Bythis time, Tetra Tech

27hadpaved over approximately 10,000 square yards (about two acres) ofwhathad theretofore had been open field, resulting in increasedrunoffinto perforated storm drain thathad notbeen replaced, and whichran directly underneath the location ofthe north mooringpad (tr. 1/201). TetraTech sent a follow-up letter (S-195) on 30November 2011, reporting that it had performedthe undercuts in the north mooringpad area from 15-19 November 2011 (R4, tab 54). Mr. Lipscomb testified that the areawas stabilized afterthe undercutting, but there was a period ofrain that destabilized the area again, requiring more undercutting before a suitable subgrade material could be installed. The issues in this area were causedby the perforated drain pipethat allowed water from runoffto saturate the area below grade and destabilize the subgrade soils. (Tr. 1/202-03)

56. Theperforated pipes were shown onthe site utility plan (1974 drawings included in the solicitationpackage) as storm drains with no indication thatthey 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 ifit 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 thatthe pipe, being for watertransfer, was a solid pipe (supp. R4, tab 329 at 71). Dr. Meehan testified that a geotechnical engineerwould assume that stormwaterdrains on a drawing were solid, absent an indication to the contrary (tr. 3/113-14). Drawings expressly indicating thatthe storm drains in question are perforated, dated 8 October 1941, were first producedby the government in discovery in this appeal (app. supp. R4, tab 190).

57. Although one section ofthe perforated storm drain first reported in February of2011 was replaced afterMod 8 issued in July 2011, ithad in the meantime continued to saturate the subgrade underlying the new concrete and asphalt (FarEastMooringPad and Asphalt Pavement) to be constructed by TetraTech, and the remaining perforated sections continued to saturate the subgrade in other areas, including the North Transient Pad, all ofwhich required remediation eitherby undercut andbackfill, or in less severely affected areas, by means ofsoil cementing. The areas remediated are designated SL 146, SL 155, SL 178, and SL 195 onthe 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-discoveredperforated storm drain, which was notreplaced, contributed to the saturated conditions encountered alongthe east side ofthe hangar, designated as SL 149 and SL 146 on the site map (app. supp. R4, tab 293), the remediation measures employed in this area consistedprimarily ofsoil cementing, as described in TetraTech letters S-149 (R4, tab 44), and S-146 (R4, tab 41).

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

The government's defenses against TetraTech's claim depend primarily on establishing that Tetra Tech encountered, and should have expected to encounter, shallow groundwaterwhateverthe cause might be. We have already found thatthe Giles Report did not warn ofsaturated soil, but told bidders they could expect stiffconstructible soils with close to optimum moisture content for compaction (finding 17). However, since the government argues that TetraTech encountered shallow groundwater due to a high natural watertable 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), waterwas encountered 14.5 feet down at Boring No. 3, waterwas encountered 9.5 feet down at BoringNo. 4, perched water at 1.2 feet down was encountered at BoringNo. 5, 19 and no water was encountered at Boring No. 6 (terminated at 15 feet). Thus, the Giles Report estimate ofthe location ofthe watertable 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 Engineeringregarding the likely depth of the watertable at the site. Mr. Derrick Shelton, P.E., the geotechnical engineerwho

oversaw Haley & Aldrich's geotechnical investigation, testified:

[I] knew that from a construction standpoint, for them to encounterthattrue water table, they'dhave 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. Nowhad you believed that the watertable

was one foot below ground, what type ofconstruction 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 watertable was that shallow, we'dhave to reevaluate

19 Boring No. 5 was in close proximity to the location ofthe leaking fire hydrant discovered by TetraTech (gov'tPFF 

### ii 13; R4, tab 2 at 502, tab 70 at 527). 29the foundation systemthat weputin. We'dhave to reevaluate howthey would actually perform all the excavations throughout the site. And thatwasn'tthe case. In

ourreport weput some specific recommendations in there to

coverhowthey excavated. And we clearly saidthat 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 ofthe excavations onsite. So ifit was a true high groundwatertable, we wouldhave had to reevaluate our entire report.
(Tr. 3/218-19)

61. Appellant's expert Dr. Meehan testifiedthat, as opposedtoperchedwater, the natural water table is a continuous level ofwater at some elevation (tr. 3/25). Ifone were to dig down into the watertable itself, waterwould fill the hole up to the level ofthe watertable (tr. 3/26). Soils at the level ofthe watertable cannotbe described as "stiff'' (tr. 3/30). "Groundwater" is an inclusive term used to describe water in the ground, whether it is beneath orabove the elevation ofthe watertable (tr. 3/28).

62. Appellant's witnesses testified that the problems with saturated soils encountered south ofColumn Line 9 could not have been causedby cutting into the water table because, after digging underneath the saturated soil, they found firm, stable, suitable subsurface soil. Mr. Joseph Gray, TetraTech's quality control manager on the project, testified:

Q Okay. Nowwhatwas your view as to whether or notyou cut into the watertable? A I did notthink we hitthe watertable. 

### Q I would like for you to explain to the Court, sir, why it was yourbeliefthat you all had not hit the watertable. A The watertable, in my past experience, is usually pretty uniform and consistent in elevation. When weput wells into the ground, weputnumerous wells at a site, and then we go and measure the elevations. Andthey would, the differences in the elevations wouldbe in hundredths ofa foot, tenths ofa foot at the most. We weren'thitting the water or any kind ofmoist soil at the north end. Then we go a little bit to the other end and now it's moist soil. So ifit's down at the south end, it shouldbe up at the north end. Q Okay. Nowwhen you're, ifyou're excavating based on your experience, and you cut into a watertable, what happens?

30A The water, the excavation would fill with water, either slowly or fastly, depending on the nature ofthe aquifer. Q Okay. Now did that happen here? A No. 

### Q Andbased on your experience, ifyou cut out, let's say you hitthe watertable. And you cut outtwo to three feet undercut, do you reach dry soil? A No. Q Why not? A The watertable'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 ofareas, yes. 

### Q Okay. So when you undercut and youtook that bad soil away, whatwouldbebelow it? A Well the way thatwehad to construct, we had to undercut down to a firm soil that was suitable and then come up from there. Ifwe 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

ordrier or firm or stiffsoils below that undercutting? A Yes. In the south end ofthe site, we were able to dig through the soil that was unsuitable and get down to dry soil that was suitable. Andthat's whatwe brought our stone up offof. 

### 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 Basedupon what you saw, based upon your experience, what is your view, as to whether ornot Tetra Tech had cut into the watertable, sir? A We did not believe it was the watertable. We didn'tthink we were anywhere close to the watertable. Q And what is the

-- why do you [say] that? Explain to the Court, why youthink you all never hitthe watertable.

31A Becausethe water would still be trying to achieve its natural level, despite the excavation that went on, and you don't seethatthere. Therewere many holes we drilled outthere that didn't find water at all. Many ofthe Giles holes didn't even find water. Q Okay, now, Mr. Lipscomb testified aboutthe possible soils remediation methods. One was cementing. Onewas doing an undercut ofgoing in and cutting outtwo, three, five feet, whatever it was ofthose bad soils, andthat's what was done. Whatkind ofremediation methods wouldhave been required, had Tetra Tech actually cut into the watertable? A I don'tknow that you couldhavejustremediated it

onthe spot. You would have had to changeyourwhole process. Q Okay. A Butthat was truly permanentwatertable. Q Will soil cementingresolve cutting into a water table? A No. Q Will cutting outthe soil andjustputting in new soil remediate cutting into a watertable, sir? A No.

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

And what I recommendedto Tetra Tech is, let's dig

some small testpits. 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-inchesthick. And youremove the soupy material, the soft material, andthere

was nice, firm groundbeneath it. And coincidentallywe wrote recommendations on howto treat the soil. Andthat's whatthe recommendation said, excavate 24 inches, maybe a little bit deeper depending on how, what depth you find firm soil. 

### Q But ifTetraTech had hit the watertable and then undercut 2 feet, would that solve the problem ofhaving hit the watertable? A No. I mean, ifyou had hit the watertable and you excavated 2 feet, you'd have standingwater in thebottom of the excavation. Andthat's no[t] what wehad.

32

### Q Okay. Nowthere have been some assertions in this proceeding, this litigation, I believe by the government's expertthat whatTetra Tech shouldhave 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 basicallypermanently lowerthe watertable. What is your view ofthat option, sir? A That sounds like an option that you wouldperform ifthewatertable were truly one foot down, orvery close to the ground surface. Our site didn'thave that, and it would have not necessarily addressed the problem which we had

was isolated zones ofsoil at a particular depth that werejust soft and saturated.

(Tr. 3/222-24) Dr. Meehan concurred thatthe natural watertable did not causethe soil conditions encountered by TetraTech:

(Tr. 3/44) [Y]ou know ifyou look atthe field evidencethey excavate outthe muck and they don't see any ground water seeping in. I talked about my bathtub example. Ifthey take outthat soil the water is going to seep in and return to its natural elevation. Afterthey mucked outthese holes okay, at the bottom elevationthings are firm and stable and that is what they are basingtheir you know ground improvement options offoffrom thatpoint. There is no evidence ofwatercoming in there. There is no evidence ofthat ground watertable returning to its natural elevation seeping in and I think that is, in addition to kind ofthe boring logs, that is a strong example offield evidence whereyou look and you see and it's not happening. That is a very strongpiece ofevidence.

63. The government's expert witness, Mr. Weikel, stated thatthe watertable "couldbe" as high as one foot down based on the boring logs (tr. 5/134), but also conceded that TetraTech did not encounterthe natural watertable when it excavatedthe retention ponds (approximately I0 feet down) orwhen it began excavating for the new addition (tr. 5/125-26). The government did notpresent any credible evidencethatthe soupy, unsuitable soils encountered by TetraTech during excavation were a result of cutting into the natural watertable.

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 encounterthe natural water

33table 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 ofColumn Line 9 "ifwe had bad weather." She further stated that at the time TetraTech began excavation "wewere into bad weatherbecause they didn't get their permit in a timely manner in orderto start excavation in September. They ended up starting in December." (Tr. 2/224) This appears to be at least part ofherreasoning 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 "itmight be necessary to remove or stabilize the upper 6 to 12 inches (or more) ofsoil due to adverse weather, which commonly occurs during late fall, winter, and early spring. At least some over-excavation and/or stabilization ofunstable soil shouldbe expected ifconstruction is during or after adverse weather." (Gov'tbr. at 36) (citing R4, tab 70 at 523) The government asserts, without citation to the record: "Appellantwas largely responsible for starting excavations late because it did not get the required dig permit from the Maryland Department ofthe Environment" (gov'tbr. at 36 n.4).

66. The record does not supportthe government's assertion. Following extended review (Tetra Tech first notifiedthe government ofthe issue on 9 February 2010), Tetra Tech'sproposal to change from a spread-footerto a deep foundation system for the building addition was finally approved and Mod 3was issued on 30 September 2010 (finding 21). The government issuedthe NTP for construction to begin on 21 September 2010 (finding 22). TetraTechhad 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 runoffinto the retention ponds (finding 22). Afterthis work was completed, TetraTech received a discharge permit from the MDE on 30 November2010 and began site excavation on 1December 2010 (id.). However, despite a beliefamong the government witnesses that there had been a delay in construction caused by Tetra Tech's failure to timely file its Notice ofIntent (NOI)20 (tr. 4/41) (Mr. Schweizer, for instance, testified to "our understanding" that TetraTech had not timely applied for the NOi (tr. 4/42)), no government witness appeared to have personal knowledge ofthe 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 nottrue that excavation for the buildinghad begun and then was stoppedbecause ofthe lack ofapermit (tr. 1/229). He stated there may have

20 The Notice ofIntent must be filed with the MDE to start the process ofapproving a discharge permit (app. supp. R4, tab 218, Appendix A at 2). 34been a "slight delay" between finishing the erosion control activities and receipt ofthe permit from the MDE (tr. 11230).

67. In arguingthat TetraTech encountered "adverse weather" affecting its excavation activities, the governmentrefers to this Giles Reportwarning:

Site soil is moisture sensitive and will become unstable when exposedto adverse weather such as rain, snow, and freezing temperatures. Therefore, it mightbe necessary to remove or stabilize the upper 6 to 12 inches (or more) ofsoil due to adverse weather, which commonly occurs during late fall, winter, and early spring. At least some over-excavation and/or stabilization ofunstable soil should be expected if construction is during orafter adverse weather.

(Gov'tbr. at 46 (citing R4, tab 70 at 523)) The government argues thatby "adverse weather" the Giles Report is not referring to large amounts ofprecipitation, butrather to any combination ofsnow, ice, and freezing temperatures common in late fall, winter, and early spring (id.). 

### It then cites pictures in the Rule 4 file that showthat the site experienced some snow and ice duringthe December2010 excavations (gov'tbr. at 47, PFF**~** 135). Fromthis, the government concludes that Tetra Tech was warnedby the Giles Reportthat it could experiencethe same adverse weather conditions that actually occurred (id. at 46-47).

68.We do not accept the government's premise because it is not well grounded in the record. First, the Giles Report warns aboutthepossibility ofhaving to excavate primarily the top 6 to 12 inches ofsoil due to adverse weather (although not ruling out it mightbe necessary to go somewhatdeeper) (R4, tab 70 at 523). This warning did not extend to the subgrade, as far down as sixto eight feet, which is where TetraTech encounteredthe unsuitable, soupy soils (finding 23; tr. 1/218, 260). Second, the governmenthas offered no evidence that its claimed "adverseweather"had any causal connectiontothe unsuitable soils encountered at subgrade. The evidence is thattheprecipitationthat occurred in December 2010 was "sparse" and had no effect whatsoever on excavation activities. (Tr. 2/32-37) Indeed, as Haley & Aldrich noted in theirJanuary 2011 letter, the precipitation level for October, November, and December of20I0 was approximately 30%below the normal monthly average, and there were no significantprecipitation events leading up to the Decemberexcavation operations that encountered soupy soils (finding 25).

69. We find it unnecessary to determine an exact definition of"adverse weather" for purposes ofthis appeal. We find that the unsuitable subgrade soils encounteredby Tetra Tech were not causedby weather ofany sort and were not otherwise reasonably foreseeable based on the information contained in the Giles Report.

35The Unsuitable Soils Requiring Remediation Were Caused by Undisclosed Leaking Infrastructure atthe Project Site

70. Dr. Meehan testified that in his opinion the predominant cause ofthe unsuitable subgrade soil conditions Tetra Tech encountered at the project site was the "significant and numerous sources ofleaking infrastructure" which were not revealed in eitherthe Giles orthe Haley & Aldrich geotechnical reports (tr. 3/53-54). This conclusion was basedprimarily on (1) the proximity ofthe saturated soils to the leaking water source and/or the existence ofa natural path for the waterto follow from the source ofthe leak to the saturated soils; and (2) the lack ofany otherplausible explanation for the condition ofthe soils (tr. 3/44-47, 54-58). In his view, the soil conditions encountered by TetraTech that required remediation were materially different from the conditions reflected in the Giles Report (tr. 31117).

71. The Board finds thatthe unsuitable saturated subgrade soils that TetraTech encountered and remediated at the project site were causedprimarily by the undisclosed leaking infrastructure at theproject site, including the (1) leaking valve/water main outside the LOD in the southwest comerofthe project, (2) the two perforated storm drains, and (3) the leaking fire hydrant. We find that any secondary, natural sources that may have contributed waterwere insignificant in comparison.

Tetra Tech Completesthe 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 of2012, except for some change orderwork (tr. 2/108). COL Tracy testified that TetraTech completed the project early under difficult circumstances (tr. 2/300).

The Request for Equitable Adjustment, Claim, and Final Decision

73. On 1June 2012, Tetra Tech submitted its request for equitable adjustment (REA) to the successor CO, Ms. Hitch.21 Tetra Tech requested atotal of$1,202,417 for the extra cost ofsoil remediation due to Type 1differing site conditions. (R4, tab 58 at 6 of36) The enumerated differing site conditions included the leaking fire hydrant, the leaking watervalves, perforatedpipe running underthe new construction areathat had been identified as solidpipe in the drawings incorporated in the RFP, and perforatedpipe adjacent to the construction that had been identified as solid (id. at 3 of36). The enumerated cost elements were:

21 Mr. Hall was removed as CO by the USPFO, COL Tracy, toward the end ofMay 2012 (tr. 2/302-03). 36WORK 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 REApreparation $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 of36)

74. CO Hitch apparently rejected Tetra Tech's REA on the basis ofMod 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 November2012 (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 ofRequest for Proposal (RFP) #11 for Deep Foundation due to Differing Site Conditions. The resulting modification P00003 was signed by both parties on 30 September2010.

37(Id. at 1) The report provided by Haley & Aldrich is not the responsibility ofthe Government; therefore, the claim is unsubstantiated.

75. CO Hitch testified at trial and answered questions regarding the reasoning underlying her COFD. Somerepresentative excerpts follow:

Q Now I wantto make sure I understand something right, and I might have misunderstood you. Butwhen 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 anotherparagraph that talks about, on that modification, that is required by FAR. Q We'retalking about Modification 3. A Mm-hmm. Q We're talking about

-- A (simultaneous speaking)that's on all modifications. Q We'retalking about the waiver language. Correct? A The claim ofthe, I forget, I'dhave to look at the mod,

one ofthe mods to show you. It's a paragraphthat, 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'mtalking about when you issued the denial ofTetra Tech's Claim. A Okay. Q Okay? Atthat time you based it upon Modification 3, a change to the contractthat had already been executed. Correct? A Yes, sir. Q You did not dispute thatthere was a differing site condition. What you said is, that condition was coveredby Modification 3. Correct?


### 38

### A Modification 3 covered those site conditions to determine the deep foundation. 

### Q Right. But I may not be making myselfclear. A Okay. Q 

### Butthe point was that those conditions that led to the claim were part ofModification 3 ofthe 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 Ibelieve the dispute is we didn't find it as a differing site condition. Q That's not what your denial ofthe claim says, though, is it? A Thatwas the determination ofModification 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 thatthe Haley & 

### Aldrich report, in so far as it addressed the likelihood ofsettlement in the soil, was thatthe part that was relevantto the deep foundation issue? THE WITNESS: The soil conditions ofthat 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'tneed 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 of201O?

39THE WITNESS: My understanding is the Haley & Aldrich report identified the soil conditions based on the testings thatthey had done and the different sites thatthey had taken. Okay? This was ateam effort. And based on that discussions, okay? We had agreed thatwe had issued Modification 3. Andthen 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 otherwords, 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: Didthe Haley & Aldrich report identify the existence ofunsuitable soils? THE WITNESS: I don'tknow exactly whether it did

ornot. 

### It said that in certain conditions the soils could become unsuitable. 

### It did identify that. JUDGE O'SULLIVAN: So it identified apossibility. THE WITNESS: Yes. JUDGE O'SULLIVAN: Which atthat point had not occurred. THE WITNESS: Not at that time.

JUDGE O'SULLIVAN: So when in December2010 Tetra Tech ran into unsuitable soils as they were excavating, how could thathave 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 ifwe had bad weather. And we were into bad weatherbecause they didn't get theirpermit in a timely

manner in orderto start excavation in September. They ended up starting in December.
(Tr. 2/220-24)

This Appeal

76. Tetra Tech filed its notice ofappeal 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 ofthe certification of Tetra Tech's claim. The parties agreed to a stay ofproceedings to allow Tetra Tech to

40properly 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 entitlementto 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 underFAR52.236-2(a)(l) and (2) (both Type I and Type II). TetraTech also claims thatthe government's actions in this case amountedto a breach ofwarranty, breach ofits obligation to disclose information known to it (leaking infrastructure, perforated storm drains) that was relevant to subsurface conditions at the site, and breach ofthe implied duty ofgood faith and fair dealing.

The government contends that TetraTech has not established either a Type 1or 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 saturatedby groundwater at very shallow depths. Having known that, the government continues, Tetra Tech should have engaged in extensive dewatering before beginning excavation, andit cannotrecover for expense that it incurred because it failed to do so. The government also disputes Tetra Tech's breach ofwarranty, superiorknowledge, and breach ofimplied duty arguments.

The elements ofa Type I differing site condition, which FAR52.236-2(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 contractorreasonably relied upon its interpretation ofthe contract and contract-related documents; and (4) the contractorwas damaged as a result ofthe material variation between expected and encountered conditions. 

### Optimum Services, Inc., ASBCA No. 58755, 15-1 BCA**~** 35,939 at 175,653-54 (citing

### StuyvesantDredging Co. v. United States, 834 F.2d 1576, 1581 (Fed. Cir. 1987); and 

### Comtrol, Inc. v. UnitedStates, 294 F.3d 1357, 1362 (Fed. Cir. 2002)). A contractor mustprove these elements by apreponderance ofthe evidence. Id.

In this appeal it is undisputed that the contractor actually encountered a large volume ofsaturated, unsuitable soils during excavation oftheproject site. 

### It is also undisputed thatthe only information on subsurface conditions that the government made available to Tetra Tech and the otherbidders before bidding was the Giles Report, which

was Appendix Bto 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.

41The 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 stiffconstructible soils with close to optimum moisture for compaction (finding 17). This finding is based on not only the characterization ofthe 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 waterwas encountered during drilling at Boring Nos. 2 (terminated at 16 feet down) and 6 (also terminated at 16 feet down) (findings 9, 13). Waterwas encountered at 9 feet down at BoringNo. 4, 11 feet down at Boring No. 1, and 14.5 feet down at BoringNo. 3 (findings 10, 11, 13). Perched water was encountered 1.2 feet down at BoringNo. 5, but thereafter no waterwas encountered down to the 21-foottermination depth (finding 12). Based on this data, Giles conservatively estimated the natural watertable to be approximately 7 to 11 feet below ground at the test borings (finding 6; tr. 3/34).

The water content ofthe soil samples recorded in the Giles boring logs ranged from 7to 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 "inthe high single digits to upperteens" for a silty clay, "inthe 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 ornear saturation (findings 9-12).22 However, his assertions appearto be directly contradicted by the Haley & Aldrich geotechnical report which determinedthat 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, saturatedunstable soils" or "soils with high moisture content well above optimum and nearthe liquid limit" (app. supp. R4, tab 314 at 2). Attrial 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 theirtest borings, and reported thatthe liquid limits for the project soils ranged from 18% for sandy siltto 51% for clay soil (id.). None ofthe Giles test borings reported soil moisture content at these levels, nor did Giles describe any soil it sampled as soft, saturated, orunstable.

22 Mr. Weikel did not cite to any authoritative source, either in his expertreport or in his testimony, for his statements equating percentage water content in the high single digits or mid orupperteens with saturated soil. 42Both 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 ofHaley & Aldrich testified that he was surprised when he

was called outto 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 orthe Giles report that would lead me to believe that those soils would be that soft and saturated, as what I observed when Ivisited the site." (Tr. 3/221-22) Dr. Meehan testified thatthe soils in the Giles Report were "described as stiffquite frequently, sometimes you would see dents were medium or firm there were a few instances where things fell outside ofthat range but the predominant description ofthe in situ condition of the soils was something like medium to stiff' (finding 8). There was not a lot ofsoft 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 similarrecommendations 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 becausethe conditions encountered by Tetra Tech during excavation were conditions that had already been identified in the Haley & Aldrich report (and therefore were notdiffering site conditions):

Andthen 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 whatwas occurring. In otherwords, Haley & Aldrich had said these situations can occur and, therefore, it had not changed since Haley & Aldrich had issued theirreport. 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 Butthe point was thatthose conditions that led to the claim were part ofModification 3 ofthe contract. Correct? A Based on the Haley & Aldrich report, yes.

43(Id.) 

### Q And it appears when I'mhearing 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 Ibelievethe dispute is we didn't find it as a differing site condition. 

### Q That'snot what your denial ofthe claim says, though, is it? A Thatwas the determination ofModification 3, is all site conditions at thatpoint 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 ofwhom was the author ofthe Haley & Aldrich report, emphatically refuted this notion. Buteven 

## if itwere true, it would not defeat a claim for differing site conditions becausethe issue is whetherthe conditions encountered differed materially from the conditions indicated in the contractandupon which the contractor basedits 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 becausethose conditions were the same or similarto the soil conditions that formed the basis for the modification. But, as Mr. Sheltontestified, the Haley & Aldrichrecommendation for a deep foundation, which was accepted by Mod 3,

was based on its analysis ofthe settlement characteristics ofthe soils at depths of20 to 30 feet below ground, and had nothingto do with the saturated soils closerto the surface that were discovered during excavation (tr. 3/230-31). We conclude for these reasons that neitherthe Haley & Aldrich report, norMod 3, foreclose Tetra Tech's claim.
During Excavation TetraTech Encountered a Large Quantity ofSaturatedUnsuitable Soils Requiring Remediation

What conditions were actually encountered by the contractor is a question offact. Arundel Corp. v. UnitedStates, 515 F.2d 1116, 1123 (Ct. Cl. 1975). Tetra Tech presented testimony from several witnesses and documentary evidence ofsoft, saturated, "soupy" soils in several discrete areas encountered during excavation that required undercutting and backfill or soil cementing in orderto be able to proceedwith the work (findings 23-27, 32, 34-35, 38-42, 48-50, 52-53, 55). There is also ample evidence in the record ofleaking infrastructure either in closeproximity to the problem soil or situated so
as to facilitate the transport ofsubstantial quantities ofwater continuously to areas where

44saturated soils were encountered 

### (id., findings 70-71). Tetra Tech timely notified the government ofthese 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 byTetraTech, the timeliness ofthe notifications, orthe necessity ofthe 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 ofthe Giles Reportpriorto bidding. Thus, the government's geologist, Mr. Weikel, testified at length that the testborings in the Giles Report depicted soils at ornear saturation and very near, ifnot at, their liquid limit (findings 9-12, 14). Mr. Weikel in his expertreport relied on the data from Haley & Aldrich Boring No. 8 and the Haley & Aldrich recommendation to design for groundwater at one-footbelow the surface to assume that the site had a very high natural watertable (one-footbelow ground level) and opined that Tetra Tech should have planned to institute a site-wide dewatering system well in advance ofattempting excavation (finding 16). The government does not contest that Tetra Tech encountered leaking infrastructurebut argues eitherthat its effects were disclosed in the Giles Report

orthat its contribution to conditions at the site was insignificant comparedto the totality ofgroundwaterpresent from other sources.

The government's arguments are not supported by thepreponderance ofthe evidence. We have found as fact that the Giles Report told bidders to expect medium to stiffconstructible soils with close to ideal moisture content for compaction and warned neither ofsaturated soupy soils nor leaking infrastructure (finding 17). We have also found as fact that the saturated unsuitable soils were not causedby a high natural water table orby precipitation, butby the undisclosed leaking infrastructure (findings 46-47, 57-58, 64, 68-69). TetraTech has carried its burden ofprovingthat 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 aprovision in General Conditions (3.04, Site Investigation) obligating the contractorto satisfy itselfas 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 ofthe 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 contractorto "ascertain the nature and location ofthe work and the general and local conditions, which can affectthe work orthe cost thereof' (id.).

45Tetra Tech conducted a site visit along with otherbidders 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 ofsubsurface 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 ofthe Giles Report, with three variations: (1) the "very moist" soil conditions Tetra Tech encountered were as reported by Giles, which characterizedthe soil as "moist" or "moistto wet" (gov'tbr. at 45); (2) the Giles Report warned againstthe effects ofadverse weatherwhich Tetra Tech encountered when it excavated in December of2010 (id. at 46-47); and/or (3) the Giles Report data warned ofsoil at ornearthe liquid limit, "dangerously close to saturation" so that a reasonable contractorwould 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 stiffconstructible soils described in the Giles Report; (2) the saturated soils requiring remediation were not caused by weatherbut 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 orunstable soil but to constructible soils with close to optimum moisture content for compaction.

The government also argues that Tetra Tech withheld a key piece ofinformation by not informing the governmentthat the Haley & Aldrich report boring results were affected by a major snowstorm (ofwhich certainly all government personnel on site were well aware) until itran into the saturated soils (gov'tbr. at 48-49). The relevance ofthis line ofargument to the foreseeability issue is not clearto 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 exceptby the statementthat the boring logs contained in the two geotechnical reports showed the presence of"high groundwater." The government has not established any connection between eitherproximity to the Chesapeake Bay, orthe season, and the saturated subgrade conditions at the site. Therefore, we do not further address this assertion. Tetra Tech has proven by a preponderance ofthe evidence that the conditions it encountered at the project site were not reasonably foreseeable.

Tetra Tech Reasonably Relied on the Contract Indications ofSubsurface 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. UnitedStates, 153 F.3d 1338, 1345 (Fed. Cir. 1998); Optimum Services, 15-1 BCA 

### ii 35,939 at 175,657. Reliance is unreasonable when a contractorhas independent reason to know arepresentation may not be accurate. International

46Technology 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 "forinformation only" or thatthe contract contains a requirement thatthe contractorperform further subsurface investigation after award does not deprive a contractor ofthe right to rely on the government's pre-contractrepresentations. Metcalf Constr. Co. v. UnitedStates, 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'tbr. at 39). However, it argues that Tetra Tech had the opportunity to "adjust its proposal" on the basis ofthe 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 ofthe project" (gov'tbr. at 39-40). The government does not explainhow it thinks TetraTech 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 ofthe normal site conditions. Nor can this argument be squared with the government's rejection ofthe REA that Tetra Tech submitted after it discovered the unsuitable subgrade soils. Ultimately, the government's argument in this regard devolves into a repetition ofthe propositions, which we have already rejected, that both the Giles and Haley & Aldrich reports warned ofsoils "atornear 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 ofthat fact to the issues before us.

We find that Tetra Techhas established by a preponderance ofthe 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 aResult ofthe Differing Site Conditions

Tetra Tech has shown by apreponderance ofthe evidence thatthe 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 constructtemporary 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 incurredthe extra expense ofsoil remediation not as the result ofdiffering site conditions, but as a result ofits failure to heed the alleged warnings in the geotechnical reports and conduct comprehensive dewatering priorto commencing construction (gov'tbr. 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
47additional 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 priorto excavation.23

The government's expert, Mr. Weikel, did opine that a site-wide dewateringplan should have been instituted six to eight months priorto commencing construction (tr. 51101, 107). However, Mr. Shelton ofHaley & Aldrich testified that site-wide dewatering would make sense only ifthe watertable was very close to the ground surface, which was not the case at the project site, and would not necessarily address the conditions that TetraTech encountered, which were "isolated zones ofsoil at aparticular depth that werejust soft and saturated" (finding 62).

We find that Tetra Tech has proved by apreponderance ofthe 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 ofwarranty ofspecifications, breach ofcontractby reason offailure to disclose leaking infrastructure, and breach ofimplied duty ofgood faith and fair dealing. Tetra Tech does not seek additional amounts under any ofthese alternate theories. (App. br. at 155-65) Having found Tetra Tech entitledto its increased costs ofperformance due to Type I differing site conditions, we do not address its alternate theories ofrecovery.

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 ofthe 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 outthat 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). 48CONCLUSION

The appeal is sustained and is hereby remandedto the parties for determination of the quantum ofadjustment.

Dated: 15 November 2016

# ~~4zt MARKN. STEMPLER Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

-Attachment Administrative Judge Armed Services Board ofContractAppeals

I concur /"\ 

# ---------

. ' /'\ 

# -·- / .J--!--r-

- /1>/ I i \_

# ~S~CKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify thatthe foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA Nos. 58568, 58845, Appeals of TetraTech Facilities Construction, LLC, rendered in conformance with the Board's Charter.

Dated:

49 JEFFREYD. GARDIN Recorder, Armed Services Board ofContractAppeals

### ACRONYM GLOSSARY

APO-Aberdeen Proving Ground

CFMO-ConstructionFacilities Maintenance Officer
OPW-Oepartment ofPublic Works

LOO-limits ofdisturbance
MORANG-MarylandArmy National Guard/Maryland Military Department
MDE-MarylandDepartment ofthe Environment
QA-quality assurance

SWPPP-StormwaterPollution Prevention Plan

USPFO-U.S. Property and Fiscal Officer