ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeals of

-- ) ) C.R. Pittman Construction Co., Inc. ) ) Under ContractNo. DACW29-00-C-0075 )
APPEARANCES FORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 57387, 57388, 57688

GeraldA. Melchiode, Esq. Jeffery B. Struckhoff, Esq.

Galloway, Johnson, Tompkins,

Burr & Smith New Orleans, LA Thomas H. Gourlay, Jr., Esq.

Engineer ChiefTrial Attorney William G. Meiners, Esq.

EngineerTrial Attorney U.S. Army EngineerDistrict, New Orleans
OPINION BYADMINISTRATIVE JUDGE WILSON
These appeals originate from claims filed under a construction contract for improvements to the Soniat Canal in Jefferson Parish, Louisiana. 1 The contract required, inter alia, C.R. Pittman Construction Co., Inc. (appellant orPittman) to increase the drainage capacity ofthe existing drainage canal by lining it with concrete and increasingthe cross-sectional areaby excavation. Appellant filed three claims alleging the following: (1) a Type II differing site condition regarding removal of sheetpiling (ASBCANo. 57387); (2) delays due to flood events (ASBCANo. 57388); and (3) breach ofcontractbythe Corps due to the deletion ofgravity sewer line work from the contract (ASBCANo. 57688). The Board hasjurisdiction ofthe appeals underthe Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. The Board held a hearing in New Orleans, Louisiana, onthe above-captioned appeals. The parties have submitted post-hearing and reply briefs. Only entitlement is before the Board for decision.

1 TheBoardpreviously issued a decision underthe same contract denying entitlement to additional delay costs associated with timbermats. See C.R. Pittman Constr. Co., ASBCANo. 54901,**08-1BCA~33,777.** Familiarity with that decision is presumed.FINDINGS OF FACT
A. The Contract
1. On 25 July 2000, the United States Army Corps ofEngineers (government or Corps) awarded ContractNo. DACW29-00-C-0075 to appellant in the amount of $14,426,258 for the "SoutheastLouisiana Urban Flood Control Project, Improvements to Soniat Canal" in Jefferson Parish, Louisiana (R4, vol. II, tab D). The fixed-price contractrequired appellantto increase the drainage capacity ofthe existing drainage canal by lining the canal with concrete and increasing the canal cross-sectional areaby shallow excavation. Upon completion ofthe project, the canal would convey storm runofffrom Metairie, Louisiana, towards a pumping station in Jefferson Parrish and ultimately into Lake Pontchartrain. (ASBCA No. 57387 (57387), compl. and answer 

### ii 8; tr. 1/28) The contract further required completion ofthe workwithin 900 calendar days ofthe receipt of"Notice to Proceed,"which was issued and received on 28 July 2000 (57387, compl. 

### ii 9; supp. R4, tab 3; R4, vol. II, tab D). Thus the contract completion date was 14 January 2003.
2. The contract containedthe following standardclauses: Federal Acquisition Regulation (FAR) 52.233-1, DISPUTES (DEC 1998); FAR 52.243-4, CHANGES (AUG 1987); DefenseFederalAcquisition Regulation Supplement (DFARS) 252.243-7001, PRICING OF CONTRACTMODIFICATIONS (DEC 1991); and DFARS 252.243-7002, REQUESTS FOR EQUITABLE ADJUSTMENT (MAR 1998) (R4, vol. II, tab D).
3. The contract containedthe standardFAR 52.232-5,PAYMENTS UNDER FIXED-PRICE CONSTRUCTION CONTRACTS (MAy 1997) clause, which stated in relevant part: (1) The Contractor's request for progress payments shall include the following substantiation: (i) An itemization ofthe amounts requested, related to the various elements ofworkrequired bythe contract covered by the paymentrequested.

(2) In thepreparation ofestimates, the Contracting Officer may authorize material delivered onthe site and preparatory work done to betaken into consideration

....

2(f) Title, liability andreservation of rights. All material and work coveredbyprogress payments made shall, atthe time ofpayment, become the sole property ofthe Government.

... (R4, vol. II, tab D at 58-60) The contract also contained FAR 52.236-2, DIFFERING SITE CONDITIONS (APR 1984)whichreads:

(Id. at 73) (a) The Contractor shall promptly, and beforethe conditions are disturbed, give a written notice to the Contracting Officer of(1) subsurface orlatent physical conditions atthe site which differ materially from those indicated inthis contract, or (2) unknown physical conditions at the site, ofan unusual nature, which differ materially 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 after receiving 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 work underthis contract, whether ornot changed as a result ofthe conditions, an equitable adjustment shall be made underthis clause and the contract modified in writing accordingly.

4. Additionally, the contract containedthe following special provision in pertinentpart:52.231-5000, EQUIPMENT OWNERSHIP AND OPERATING EXPENSE SCHEDULE (MAR 1995)-- EFARS

(b) Allowable cost for construction and marine plant and equipment in sound workable condition owned or controlled and furnished by a contractor or subcontractor at any tier shall bebased on actual cost data for each piece of equipment orgroups ofsimilar serial and series for which the Government can determine both ownership and operating costs from the contractor's accounting records. 3Whenboth ownership and operating costs cannotbe determined

...costs for that equipment shall be based upon the applicable provisions ofEP 1110-1-8, Construction Equipment Ownership and OperatingExpense Schedule, Region III. (R4, vol. II, tab D at 58)
B. AdditionalFindings of FactPertaining to ASBCA No. 57387 Type IIDifferingSite Condition (SheetPiling) Claim
5. The contract also containedthe following provision:
SECTION 02252 -TEMPORARYRETAINING STRUCTURES
PART 1 GENERAL
1.1 SCOPE This work shall consist ofdesigning, furnishing, installing, maintaining and subsequentlyremoving all temporary retaining structures required to completethis project. The Contractor shall be solely responsible for the design, layout, construction, maintenance and subsequentremoval and disposal ofall elements ofthe temporary retaining structures. 1.2 MEASUREMENTAND PAYMENT
No measurementwill be made for work specified in this section. Payment will be made atthe contract lump sum price for "Temporary Retaining Structures". Price and payment shall constitute full compensation for furnishing all plant, labor, materials, and equipment; designing, furnishing, installing, maintaining, and removingthe temporary retaining structures, backfilling voids, and all otherwork incidental thereto.

41.4.2 Elevations The retaining structures shall have sufficient height to retain the soil between them. The minimum tip elevation shall be (-) 52 feet C.D.

PART3 EXECUTION

3.2 REMOVAL OF MATERIAL 3.2.1 Removal Criteria

...All Contractor-furnished temporary retaining structures shall be removed from the site ofwork upon completion ofwork. 3.2.2 Safety The removal ofthe temporary retaining structures shall be accomplished in a manner not injurious to the properties adjacentto and in the proximity ofthe project excavations. (R4, vol. II, tab D at 232-33, 235) Additionally, Section 02252 was amended (via AmendmentNo. 0003) during the solicitation phase ofthe procurementto add the following language: "Any and all costs for retaining structures required to remain in place in the vicinity ofthe transmissiontowers

...shall be included in the contract lump sumprice for 'Temporary Retaining Structures"' (id. at 385).
6. The contract gave appellant the option to performthe work from an elevated workplatform or on a bank adjacentto the canal where available. Appellant chose to build an elevatedplatform in orderto construct the Temporary Retaining Structure (TRS) required by Item 0008 ofthe contract. (Tr. 11153, 2116-17) Item 0008 ofthe bidding schedule called for appellantto provide the TRS for a total price of$4,575,000 (R4, vol. II, tab D at 3). The purpose ofthe TRS was to retain the earth on each side ofthe canal to allow for excavation and the placement ofconcrete (tr. 1129).
7. On 14 November 2000, appellant submitted its TRS design to the government for approval. The submission provided in part:



### 5Overview: Ourtemporary retaining structure for use in the construction ofthe concrete flume ofthe Soniat Canal consist ofutilization ofan Internally Braced earth retaining structure system. Our system consist [sic] ofutilization of a steel sheetpiling wall line with walers and struts

...utilizing the AZ-18 rd.04" Arbed Steel Sheetpiling at 70 ft. long as specifiedviathe projectplans

....

The internally braced components will be a W24 and W36 fabricated walerbeams and 16 inch and 24 inch diameter pipe strut members

....

Submittals: Design: Design calculations have beenprepared utilizingthe design procedures, loads, factors ofsafety, etc as detailed via Section 02252 ofthe contract documents. The earthpressure results

...have been developed by our geotechnical consultant, Mr. Mohammad Tavassoli Ph.D

....while, the structural design components have been done by our firm's Engineers.

Steel Sheetpiling Installation & Removal:

Once the earth retaining structure is not necessary, the temporary sheetpiling not required to remain in the ground will be extracted.... Oncepulled the sheetpiling will be stacked and then loaded on to truck[s] to be remove[d] from ortransported to another location on the project site. (R4, vol. 1, tab D at 2-3) Steel sheetpilings are long structural sections with a vertical interlocking system that creates a continuous wall. The walls are most often used to 6retain either soil orwater. (Supp. R4, tab 15) The sheetpiles are placed in the ground by a vibrating hammer, which drives the piling into the soil (tr. 1/46-47). Permanent sheetpiles remain in the ground and serve as permanentretaining structures. Temporary sheet piles are designed to provide safe access for construction, and are then removed. (Id.) The record reflects that appellant used 70 ft. long AZ-18 sheet pilings as set forth in the TRS design submission (R4, vol. I, tab D). 8. The record further demonstrates that TRS work was performed and appellant billed the government for that work as of7 December 2000 and 12 January 2001 (supp. R4, tabs 9, 10). By letter dated 21 February 2002, appellant notified the Corps that it was experiencing difficulties extracting the sheetpiling from the ground on the project. Appellant stated:
We have try [sic] different vibratory hammers and have try [sic] to change the rpm's so that it might decrease the vibration readings

.... Since the U.S. Corps ofEngineers providedthe length criteriathat these sheetpilingwere to be, couldyou please advise as to ournext step in removingthe sheetpiling. We did not have figured in ourbid price to leave any sheetpiling in the ground except what was to remain on the east side as shown onthe contract plans. (R4, vol. I, tab E) 9. The Corps responded, by letter dated 11 March 2002 advising as follows: The contract language regarding this subject is clearthe minimum tip elevation ofthe temporary sheetpiling and the criteria for maximum allowable vibrations during driving or pulling are clearly stated. The methods you use for sheetpile installation andremoval shall comply with these vibration requirements. You may, however, electto leave sheetpile in place instead ofpulling them, provided the remaining sheetpile are cut offa minimum of2 feet below finished grade andprovided there is no additional costto the Government. (R4, vol. I, tab F) 10. On 28 May 2002, appellant sent an inquiry to the CO requesting guidance onthe specifics as to the sheetpiling to be left in the ground (R4, vol. I, tab G).

7Further, by letter dated 4 August 2002, appellant repliedtothe Corps' 11 March 2002 correspondence indicatingthat it disagreed with theirposition. Appellant stated:
As you are well aware, we have been frugally trying to removethe sheetpiling so thatthese materials can be movedto beutilize [sic] in ourPhase 2 ofconstruction. Dueto circumstances beyond our control wehave not been able to extract some ofthe sheetpiling from out ofthe ground.

There are seventy-five sheetpiling that hadto be left in the ground during ourPhase I ofconstruction (Monoliths 2 thru 19). These sheetpiling do not include the sheetpiling that were left inthe ground nextto the Entergy transmissiontower onthe eastside, northe sheetpilingthat are toremain in front ofthe twohouses onthe westside per the two modifications (CIN-13 and CIN-33).
Inthis breakdown wehave included extended overhead for 21 days andrequest a contracttime extension of45 days for delays andthe time it will take to procure the materials. (R4, vol. I, tab Hat 1-2) Appellant also invokedthe Differing Site Conditions clause andincluded a costproposal in the amount of$396,404.18. The proposal included costs associatedwiththe following: (1) repairs to a crane which was allegedly damaged due to the excessive vibrations expendedto unsuccessfully extractthe sheet piling from the ground; (2) labor expendedto remove the sheetpiling; (3) replacement costs for the 75 sheetpiles; (4) front office overhead; and (5) overhead, profit, and bond costs. (R4, vol. I, tab H) The record contains a drawingthat demonstrates where the sheetpiling was left inplace along the east and west sides ofthe canal startingwith Monolith 8 through Monolith 19 (R4, vol. I, tab Hat 3; supp. R4, tab 29; tr. 1153).
11. By letter dated 23 August 2002, the Corps respondedto appellant's earlier 28 May 2002 inquiry stating: "The decision onwhere sheetpiling is to remain in place is made on a case-by-casebasis after considering all factors related to the removal ofthe sheeting" (R4, vol. I, tab I). The record shows thatthe parties wentback and forth over several months about what specific "factors" shouldbetaken into accountwhen deciding to leave the sheetpilings in place (R4, vol. I, tabs J, K, L).
12. By letter dated 15 November 2002, the Corps transmitted unilateral ModificationNo. P00033, which directed appellantto leaveportions ofthe TRS sheet pilings in place atvarious locations along the west side ofthe Soniat Canal. The 8modification, which did not include any change to the contractprice, stated "Payment for workrequired by this change will be directed by a separate formal modification which will contain an agreed upon equitable adjustment." (Supp. R4, tab 26 at 2-3)
13. On 15 January 2003, appellant filed a claim in the amount of$396,404.18 (app. supp. R4, vol. I, tab 13). The claim included the attachment with the cost breakdown as previouslyprovided with the 4 August 2002 letter (tr. 1171).
14. By letter dated 8 April 2003, appellant advised the Corps that during Phase 2 construction it had exhausted all ofits resources ontrying to extract sheet pilings still embedded in the soil and that it was "dueto circumstances beyond its control." Once it documented all ofthe sheet piles it was unable to remove, appellant advised the Corps that it would be filing a claim for the costs for the labor and equipment associated with the attempted removal and the materials left in the ground. (R4, vol. I, tab M)
15. The Corps responded, by letter dated 21 April 2003, requesting the specifics ofwhatthe Corps interpreted as notice ofa differing site condition so that it could investigate and respond accordingly (R4, vol. I, tab N).
16. By letter dated 3 November2003, appellant notified the Corps with regard to the sheetpiling issue the following information:
The Differing Site Condition that wehave encountered falls into the category ofa Type II [Differing] Site Condition

....

We believe thatwhatwe encountered in the removal process differs materially from the contract and what we reasonably expected in the development ofourbid onthis project.

... (R4, vol. I, tab 

### 0 at 1-2)
17. The record shows thatthe Corps conducted a site investigation on 16 December 2003. The Corps' geotechnical engineer who visited the site, Mr. Larry Dressler, opined to other Corps employees that appellant should drive the piles in deeper in orderto break the adhesion, andthen extractthem. (R4, vol. I, tab P) There is no evidence that this informationwas passed onto appellant until 23 February 2004, when the Corps wrote a letterto appellant advisingthat appellant drive the piles deeper in orderto breakthe seal. Further, the Corps requestedthat appellant specifically define the subsurface orhidden condition sothat it could investigate further. (R4, vol. I, tab Q). However, appellanthad 9cutthe sheet piles that it could not remove from the soil and had moved the TRS further down the canal to continue work (tr. 2/70-71).
18. The record shows that the parties continuedto negotiate several outstanding modifications and claims. By letter dated 2 November 2009, appellant requested that the parties meet to negotiate the unresolved claims; which consisted of 14 items, including the sheetpiling claim ($396,404.18), the flood events claim ($1,422,728.88), and the deletion/modification ofthe gravity sewer line ($516,667.77). Appellant also submitted a claim certification for all unresolved claims over $100,000. (App. supp. R4, vol. II, tab 27) 19. The parties met on 9 November 2009 to negotiate the above-mentioned claims. The outcome ofthat negotiation was memorialized in the Corps' letter to appellant dated 23 November2009 which listed the government's position on each of the 14 items (app. supp. R4, vol. II, tab 28). The Corps stated: "Atthe end ofthe meeting itwas requested that a Contracting Officer's Final Decisionbeprovided for those items not agreed to. The Government statedthat it would provide a letter within 60 days as to when a Contracting Officer's Final Decision [COFD] would be given." (Id. at 1092) 20. As the contracting officer did not issue a COFD on the sheetpiling claim, appellant filed a notice ofappeal with the Board on a "deemed denial" basis, which was received on 29 September2010 and was docketed as ASBCANo. 57387. 21. James Pittman, appellant's vice president, testifiedthat he participated in the preparation ofthe offerwhich resulted in the contract at issue in the above-captioned appeals (tr. 1/27-28). He indicated that appellant reviewedthe contract documents, personally visited the site, and saw no indications that they would not be able to remove the temporary sheetpilings from the ground (tr. 1/72). Mr. Pittman further testified that there were several instances during Phases 1and 2 that the Corps paid appellant to leave the sheetpilings in the ground "forconvenience," as "[i]thad nothingto do with whetherwe couldpull them ornotpull them" (tr. 1/73-74). The record shows that several modifications for leaving sheetpiles inthe ground were issued allowing compensation (app. supp. R4, vol. II, tab 36). 

### The Government's Expert: 22. The Corps offered Richard J. Varuso, Ph.D., as an expert in the field of geotechnical engineering. Atthe time ofthe hearing, Dr. Varuso was the Deputy Chiefofthe Geotechnical Branch ofthe Corps (tr. 2/140). After

### voir dire ofhis qualifications, education, and experience with otherprojects involving the use ofsheet pilings, Dr. Varuso was accepted without objection as an expert in geotechnical engineering (tr. 2/144).

1023. Dr. Varuso opined: The foundation conditions for this project are very typical ofsoutheast Louisiana and the majority ofthe SELA [Southeast Louisiana] projects. The soils encountered within the borings (Son7-U through Sonl2-U) consist of fill and recent Holocene Age deposits underlain by older Pleistocene deposits. Holocene Age soils consist ofinland swamp/marsh, interdistributary, and prodelta clayey deposits to approximate El. -43.5 CD. Pleistocene Age soils (clayey, silty, and sandy deposits) are present from approximate El. -43 .5 CD to the various boringtermination depths

....

The Contractorhad to employ various methods to pull several ofthe sheet pile sections installed for the contract's TRSs. This is not uncommon nor should it have been unexpected by the Contractor given their experience as a contractor on similarUSACE projects in southeast Louisiana and their anticipated understanding ofthe effects ofpile set-up

.... The likelihood ofdiffering site conditions, either Type I or Type II, in the foundation conditions for this contract causing the inability to remove the sheetpiles is improbable. (Supp. R4, tab 35) Dr. Varuso testified that it is not unusual to experience difficulties in removing sheet pilings, and he has seen contractors on otherprojects in the area "employ various methods thathave been discussed here to remove those sheets" (tr. 21153). Moreover, he stated that the contractor "experienced difficulty in removing several sections ofsheetpiles in this contract, notjustthe 7 5that were left in place" (supp. R4, tab 35 at 2). With regard to the soil conditions at the site, he further testified: Well, we had a decent number ofborings onthis contract on both sides ofthe canal, and then spaced evenly down the canal. And those borings are all very uniform, as much as we typically see in SoutheastLouisiana.

11Again, very similar soil properties, soil types associated withthe borings that were located within this job, showing very consistent foundation deposits along Soniat Canalbetween WestNapoleon and Veterans. (Tr. 2/156) Thus, based on the waythe soils are deposited in the area, Dr. Varuso concludedthat it is highly unlikely that variations in the soil would exist in 20-foot increments (tr. 2/159). He reachedthese conclusions afterreviewing, interalia, the geotechnical report dated 22 December 1997 by Eustis Engineering Company, Inc. (Eustis Report), which contained analysis ofthe soil inthe Soniat Canal where the work was to be done (supp. R4, tab 36). The Eustis Report soil borings from the site were included in the contract documents (R4, vol. II, tab E). Basedon the foregoing, coupledwith the Corps' credible experttestimony, we find thatthe soils in the project area were typical for the Southeast Louisianaregion. Appellant'sExpert:
24. Appellant offered Jerry Householder, Ph.D., as an expert in geotechnical engineering and construction management. Dr. Householdertestified as to his experience as aprofessor ofcivil engineering at several universities, his experience with construction projects that involved driving and extracting temporary sheetpiles, as well as his several publications on construction, estimating and cost control (tr. 1/200-02). Dr. Householderwas accepted as an expert witness in geotechnical engineering and construction management without objection (id. at 205). 25. Dr. Householder's written opinion states, that "[i]nthe New Orleans area when sheetpiling is to be extracted, it is commontobe able to pull virtually all, ifnot all, ofthepiling" from the ground. He concludes that ifthe sheets could not bepulled "itis due to a subsurface soil conditionthat differs materially from that normally encountered and usually expected" (app. supp. R4, vol. II, tab 30). He examined the soil borings from the Eustis Report with regard to soil cohesion and testified that the cohesive qualities may vary as you move down the canal (tr. 11211-12). This testimony was not credible as Dr. Householder reached a conclusion based on his speculation that because the sheetpiles could not be removed by normal means, there mustbe a differing site condition without indicatingwhatthe specific condition was. C. Findings of FactPertaining toASBCA No. 57388 (FloodEvents Claim)
26. The contract also containedthe following provisions: SECTION 01100

- GENERAL PROVISIONS

122. DAMAGE TO WORK The responsibility for damage to any part ofthe permanent work shall be as set forth in the Contract Clauses

.... However, if, in thejudgment ofthe Contracting Officer, any part ofthe permanent work performed by the Contractoris damaged by flood, earthquake, hurricane, ortornado which damage is not due to the failure ofthe Contractor to take reasonable precautions or to exercise sound engineering and constructionpractices in the conduct ofthe work, the Contractor shall make the repairs as ordered by the Contracting Officer and full compensation for such repairs will be made at the applicable contract unit price or lump sum prices as fixed and established in the contract. If, in the opinion ofthe Contracting Officer, there are no contract unit or lump sum prices applicable to any part ofsuch work, an equitable adjustment pursuantto the Contract Clause entitled "CHANGES" will be made as full compensation for the repairs ofthat part ofthe permanent work. Any costs associated with flooding ofdewatered areas as directed by the Contracting Officerwill be paid for by an equitable adjustmentpursuant to the contract clause entitled "Changes". (R4, vol. II, tab D at 110-11) SECTION 02242

- DEW ATERING

PART 3 EXECUTION 3.1 OPERATION The Contractor shall perform dewatering and maintain the work areas in a dry condition as long as is necessary for the work underthis contract

.... In the eventthat flooding is deemed necessary by the Contracting Officer, the protected area shall be flooded in accordance with the sequence offlooding proposed by the Contractor and approved by the Contracting Officer.

.. . Ifflooding is directed by the Contracting 13Officer, the Contractor will be compensated for damages in accordance with the applicable requirements ofthe General Provision entitled "DAMAGES [sic] TO WORK", and the Contract Clause entitled "CHANGES"

.... 3.4 TEMPORARYEARTHEN DAMS.

(Id. at 224, 228) In orderto facilitate construction, temporary earthen dams will be allowed in orderto maintain dry working conditions. Temporary dams constructed ofwood or steel sheeting will not be allowed.

27. The term "floodevent" is used to describe when the site is flooded either by excessive rainfall orwhen the CO directs the contractor to flood the work site to allow rainwater to flow through the canal (tr. 1120). Several contract modifications (A00009

- A00022, but excluding AOOO 19) were bilaterally executed in orderto compensate appellant for "standby costs and repairs" for 109 flood events (supp. R4, tab 23). These modifications includedpayment for standby costs associated withthe TRS and the elevated workplatform, including sheetpiling and timber mats. 2 Commencingwith Modification No. P00023, the parties reached an impasse with regard to delay costs associated withthe TRS and associated items. Accordingly, the governmentbegan issuing modifications that specifically excludedthe following: "time extension costs associated withthe contractor's sheetpile cofferdam, bracing and bridging materials, timber mats, steel forms, andpontoons which are currently in dispute and will be resolvedby separate action" (R4, vol. II, tab C). This was based on the Corps' positionthat appellant was not incurring any standby costs on materials (which included the separate items that made up the TRS

- "sheetpile, timber mats, steel forms, pontoons, bracing materials, and bridge materials") (R4, vol. I, tab U at 4). 28. Between 15 January 2003 and 14 July 2004, appellant submitted several claims totaling $1,422,728 for costs associated with flood events, each ofwhich containedthe following language: "The costs that are being requestedreimbursed are required to compensate our firm for the extended usage ofthese items,justas a rental rate would be applicable ifthese items were obtained on a rental basis from an entity in the marketplace" (R4, vol. I, appx. at 

### 3,passim). By letter dated 19 February 2004, the Corps providedthe following to Pittman:

2 As stated in footnote 1, the timbermat appeal was denied by the Boardwherein we held that the Corps had fully compensated appellant for the delays associated with flood events. 14Thepurpose ofthis correspondence is to address the outstanding issue arising from the items ofcosts excepted from settlement ofModifications P00023

...and all subsequent modifications that referback to this one. Specifically, you requested compensation for sheetpile, fabricated work platform, and other items as a result of these materials remaining on thejoblonger as a result of the changes.
To date, you have failed to demonstrate thatyou have incurred any additional cost due solely to these materials remaining on thejob longer.... Your representation that owned sheetpile should be compensated for at current market rental rates, or that interest is due on the investment based onthe value ofthe materials are not actually incurred costs. (R4, vol. I, tab Z) Afterthe Board denied the timber mat claim, appellant revised its claims to exclude the timber mats on 18 May 2010 to the amount of$927,204.45 (ASBCA No. 57388, compl., ex. 4). 29. In that revised claim, appellant also included an opinion by Dr. Householder, who concluded that the items at issue should be treated as support equipment and that the method ofdetermining the delay costs is to use eitherthe rental value ofthe items or one ofthe recognized formulas to determine delay costs (app. supp. R4, vol. II,tab 33, ex. B). 30. The CO failed to issue a final decision on the claims and appellant filed an appeal to the Board from a deemed denial ofthe claim. Itwas received on 29 September2010 and was docketed as ASBCA No. 57388.
D. Findings of FactPertaining toASBCA No. 57688 (Gravity Sewer Claim) 31. Under Section 02531 ofthe contract, appellant was required to relocate the existing gravity sewer line and manholes. Payment for the work was to be based on "completed work performed in accordance with the drawings, specifications, and the contract payment schedules." (R4, vol. II, tab D at 274) 32. The contract also stated in pertinentpart: 17. UTILITIES AND IMPROVEMENTS

a. All known utilities within the limits ofthe work, such as pipes, communication lines, power 15lines, etc., that would interfere with construction work shall be removed, modified orrelocated by the appropriate utility at no costto the Contractor unless otherwise noted in the plans and/or specifications. (R4, vol. II, tab D at 124)
33. By letter dated 27 January 2003, the Corps told appellant the following with regard to an earlier meeting between the parties: As discussed at the meeting, it appears thatthe installation ofthe 30-inch drainline will conflict in elevation with the gravity and force main sewer lines, howeverthis cannotbe determined until some exploratory work on yourpart is performed. As stated in the general notes section ofthe contract drawings, "Location ofexisting utilities indicated on the plan sheets are for informational purposes only and are based, in part, on information provided by the respective utility companies. 

### It is the Contractor's responsibility to verify all existing utility locations priorto construction." Upon receipt ofthis information, we will provide further direction ifnecessary for the installation of the drainline. (Agency supp. R4, tab 8)3
34. By letter dated 20 October 2004, appellantrequested approval to use a trench box for the installation ofthe gravity sewer line and manholes, as the usage of timbertrench system shown onthe drawings may not be the best application for the work (agency supp. R4, tab 9). The Corps responded, by letter dated 17 December 2004, advising that it generally had no objection to the concept ofusing atrench box. However, the Corps added the following: Priorto purchasing the trench box, we ask that you submit details ofthetrench box and a pipe installation plan

...for our information. In addition, priorto receiving approval

3 The Corps filed a separate Rule 4 supplement entitled "Agency Supplement to Rule 4 File for ASBCANo. 57688 Tabs 1-33." For ease ofreference and to avoid confusion with the previous supplemental Rule 4 filing in ASBCA Nos. 57387 and 57388 (which contain several documents germane to this appeal), we will reference this supplement as "Agency supp. R4." 16for this change, we ask that you provide the difference in cost betweenthe wood and trench box shoring system. (Agency supp. R4, tab 10) 35. By letter dated 15 February 2005, appellant resubmitted the 20 October 2004 request as a "Value Engineering [Change] Proposal" (VECP) (supp. R4, tab 18). 36. Appellant advised the Corps, by letter dated 26 April 2005, that it could not begin construction ofthe gravity force sewer main until several issues were resolved; including, inter alia, the drawings indicate that "the existing sewer line is about two feet lower than the new sewer line is shown to be installed at" and the requirement for a new sewer line where the existing one is working fine (agency supp. R4, tab 14 at 2). 37. The Corps unilaterally modified the contractvia ModificationNo. AOOl 14 (Change Order-011 SewerManhole Changes), dated 12 May 2005, tohave the new sewer line match the elevations ofthe existing sewer line. Appellant was directed to immediately proceedwith these changes and "[p]ayment for work required by this change will be directed by a separate formal modification which will contain an agreed upon equitable adjustment." (Agency supp. R4, tab 15) 38. Appellantresponded, by letter dated 20 May 2005, advising the Corps that it intended toperform an as-built site survey to obtain the exact elevations and provide it to the Corps "priorto actually proceedingto lay the utility referenced." Appellant further added thatthe costs associated withthis survey will be included as part ofthe subsequentrequest for paymentresulting from the aforementioned change. (Agency supp. R4, tab 16). 39. By letter dated 17 June 2005, the Corps replied to appellant stating: "I have no objection to you providing as-built elevations ofthe sewer line providedthat you do not create additional work beyond what is required to install the new sewer line and manholes at their existing elevations" (agency supp. R4, tab 17). 40. On 26 January 2006, the VECP was incorporated into the contract under bilateral ModificationNo. P00107 andresulted in a decrease to the contractprice by $58,712.82 (supp. R4, tab 19). 41. On 6 March 2006, the Corps, in response to a meeting with appellant at the job site on 22 February 2006 where appellant expressed concerns with the gravity sewer installation andthepossibility ofa differing site condition, stated the following: I believe the remaining work is essentially the same work as was bid. I understandthere may be some changes that have been made such as house connections made to 17the sewer after the project started, etc. We are also aware that the sewer line will pass beneath a conflict box141 and that some manholes have been removed. We will address these issues as they are verified during construction ofthe sewer. Some changes to the work were directed by modification AOOl 14.
You shouldproceedwith the work as required in the contract. Ifyou encounter conditions such as those cited above or other conditions that meetthe requirements of Contract Clause 52.236-2, Differing Site Conditions, you shouldnotify me in writing as required by this clause. (Agency supp. R4, tab 18) 42. Appellant responded, by letter dated 14 March 2006, reiterating that it had determined thatthere are differing site conditions present with respect to both the vertical and horizontal location ofthe gravity sewer line and the sewer force main, and alerted the Corps thatthe government "mustnow take action to address this problem priorto [appellant] moving forward and proceeding with this work" (agency supp. R4, tab 19). 43. The Corps issued a "SHOW CAUSE"notice to appellant dated 3 April 2006, wherein it informed appellantthat it had not established a differing site condition because it failed to provide any specific evidence that "the alignment ofthe gravity sewer line and the sewer force main differ[ed] substantially from that presented in the plans so as to materially alterthe character ofthe workrequired." Accordingly, the Corps gave appellantten days to provide its plans and scheduleto complete all of the work required underthe contract, which included the replacement ofthe gravity sewer line. The Corps calculated 31 January 2006 as the contract completion date, which includedtime extensions for weather and pending modifications. However, the Corps gave appellantuntil 1June 2006 to complete all work. The Corps added: "If you fail to provide your schedule to complete the work

...your right to proceed will be terminated." (Agency supp. R4, tab 20) 44. By letter dated 7 April 2006, appellant notified the Corps that it had completed work onthe project and requested a final inspection be performed as soon as possible (agency supp. R4, tab 21). Appellant later requested, by letter date 20 April 2006, apre-final inspection and thatthe Corps generate a punch list ofitems

4 A "conflictbox" is "typically a boxthat you would install at a location where you have multiple utilities, and you may want to change direction ofone ofthe utilities" (tr. 2/108). 18thatremainedto be completed, asserting that the work was "99 % complete" (agency supp. R4, tab 22). 45. Meanwhile, the record reflects that appellant contacted the Jefferson Parish Department ofSewage by letter dated 5May 2006 and requested that they formulate a plan to: (a) remove, modify orrelocate the existing 8" sewer force main (as appellant could not do the work itselfpursuantto the projectplans and its contract specifications); and (b) replace four ofthe originally constructed manholes along the existing 12" gravity sewer line (because appellant had originally planned to utilize all ofthe manholes for the gravity sewerwork under the contract) (agency supp. R4, tab 24). 46. On 2 June 2006, the Corps issued a "Second Show Cause" notice, which gave appellant another ten days to present a plan and schedule to get the remaining work completed. The Corps added: "Ifyou miss this deadline without a suitable response, I will have to conclude that you are unable orunwilling to pursue the remaining work and I will take appropriate action." (Agency supp. R4, tab 25) 47. By letter dated 15 June 2006, appellant responded to the Corps' show cause letters stating the reasons for its inability to complete the work (agency supp. R4, tab 26). Appellant also referenced several events thattookplace and documents relating to those events, including a pre-final inspection that occurred on 5May 2006 and a final inspection on 2 June 2006. However, the record does not contain evidence ofthe referenced events or evidence ofthe contents ofthe documents relating thereto. (Id. at 13) We find that appellant demobilized from the site on 10 June 2006. 48. The record further shows that the parties met in August of2006 to discuss outstanding issues and to finalize the project (agency supp. R4, tab 27). By letter dated 3 October 2006, the Corps addressed the outstanding gravity sewer line issue as follows:
In our letters dated April 3, 2006 and June 2, 2006, you were given an opportunity to complete therequired sewer line work. Since you have failed to complete the sewer line work, a contract modification will be issued to delete the removal and replacement ofthe gravity sewer line. You will berequested toprovide a proposal for deleting this work

.... Based on our estimates and available information, I believe that the credit owed to the Government for deletingthe remaining work is greater thanthe remaining amounts owed under the original contract andthe total amount ofall outstanding

19modifications. Therefore, there will be no further payments issuedunderthis contractpending final resolution. (Agency supp. R4, tab 28) 49. The parties continued to settle outstanding issues under the contract. By letter dated 22 April 2009, the Corps addressed the outstanding issue ofthe gravity sewer line work. The CO stated: "Since you have failed to complete replacement of the sewer line, I am proceeding with a separate construction contractto accomplish the work." (Agency supp. R4, tab 29) The Corps attached a proposed bilateral modification to delete the work from the contract, which would have resulted in a decrease of$155,289.46 in the total contract price (app. supp. R4, vol. II, tab 18). 50. On 24 April 2009, the deleted gravity sewer line work was awarded to B&K Construction Co., LLC (B&K) via modification to its existing Soniat Canal contract (W912P8-07-C-0007) for $953,845.10 (app. supp. R4, vol. II, tab 26; tr. 21197, 199). Included in the modification were several drawings created by appellant showing conflictbox installation and location ofthe existing gravity sewer line and the sewer force main (app. supp. R4, tab 26 at CRP 1080-86; tr. 21114-16). 51. Appellant responded on 11 May 2009, disagreeing with the CO'sposition stating: At no time has [appellant] refused to complete this work, in fact, as clearly indicated by our litany ofcorrespondence dating as far back as October 2004, [appellant] has shown due diligence, asking the [Corps] for Information and Direction, as required by the contractwhen faced with a situation where Changed Conditions are found to exist on a contract. Accordingly, appellant did not sign the proposed modification. (Agency supp. R4, tab 30)52. By letter dated 18 September 2009, the CO informed appellant that the deletion ofthe sewer line work was based on its "refusal to perform the work as required" by the contract, and thus was deemed abandoned. The CO also cancelled Modification No. AOOl 14 (Change Order-011, SewerManhole Changes), which was for workto the sewer line manholes that was never accomplished. Appellant was further advised that the Corps had made other arrangements to accomplish the unfinished work on the sewer line. Enclosed with the letter was unilateral Modification No. P00121, which decreased the contract by a sum total of$155,289.46. (Agency supp. R4, tab 31) Basedupon the foregoing, we find that, otherthan the conflict box work, appellant did not accomplish any ofthe work on the gravity sewer line.

2053. Appellant responded to the Corps decision, by letter dated 23 September 2009, contending thatthe Corps had breached the contract by the issuance ofunilateral ModificationNo. P00121. Specifically, appellant alleged that it promptly advised the Corps of"the discrepancies between the contract documents and the actual condition and location and obstructions related to the installation ofthe gravity sewer line"; and that the issuance ofChange Order-011 confirmed that a material difference did exist. Appellant disputed the Corps' contention that it refused to complete the work, pointing outthat the Corps, over a period ofseveral years, had demonstrated an unwillingness to negotiate the outstanding issues. (Agency supp. R4, tab 32) 54. By letter dated 15 October 2009, appellant's counsel requested a settlement conference for all outstanding issues under the Soniat Canal project includingthe deletion ofthe gravity sewer line work, which was quantified as $516,667.77 (app. supp. R4, vol. II,tab 22). This amount included the following: (1) "POOH" (field office overhead) $206,866.98; (2) "Change OrderValue" $155,289.46; (3) "Accrued Interest" $61,515.37; and (4) other markups (21.95%) $92,995.96 (app. supp. R4, vol. II,tab 20 at CRP 1025). On 2 November 2009, appellantrequested a COFD on the outstanding claims, including the deletion ofthe gravity sewer line and certified all claims over $100,000 (agency supp. R4, tab 3). 55. On 22 April 2011, the CO issued a decision denying the claim for the gravity sewer line in its entirety. The COFD did not address appellant's claim regarding the existence ofa differing site condition. (Agency supp. R4, tab 1; tr. 2/267) However, we find thatthe issue was, by implication, before the CO for consideration as it was the reason that appellant would notproceed with the work. Appellant filed a notice ofappeal on 19 July 2011, which the Board docketed as ASBCA No. 57688. DECISION ASBCA No. 57387SheetPiling Claim Appellant contends that it encountered a Type IIdiffering site condition, and thus it is entitled topayment for the costs relatedto the 7 5 sheet pilings it was "forced" to leave in the ground (app. hr. at 1). Appellant alleges that it encountered an unknown physical condition at the site and tried a number ofextraordinary measures to extractthe piles (id. at 2). Because all other variables remained constant in the equipment, materials and methods used to drive and extractthese temporary sheet pilings, appellant concludes that it had encountered a Type IIdiffering site condition

- "namely, strata ofsubsurface soils with excessively strong adhesive qualities, which were unusual and unknown, and which differed materially from the soils that [it] ordinarily encountered in the greater New Orleans area while driving and extracting temporary sheetpiling" (id. at 3).

21The Corps counters that appellant has not "identifiedthe specific differing site conditionto which it alludes, butrelies on the assertion that, since it took all reasonable steps to extract the sheet pilings but could not do so, the only remaining explanation must be the existence ofa Type IIdiffering site condition" (gov't. br. at 13). The Corps alleges that appellant did not conduct an investigation into the subsurface conditions at thejob site, and has not offered any specifics as to the alleged differing site condition that prevented it from removing the sheet pilings. Thus, the Corps concludes that appellant has failed to meet its burden to establish the existence ofa Type IIdiffering site condition. (Id. at 35-36) Moreover, the Corps further adds that appellant has not demonstrated that it incurred costs due to the inability to remove the sheetpilings because it invoicedthe full cost ofthese items through progress payments (id. at 55).
A contractor asserting a Type IIdiffering site condition claim is "confronted with a relativelyheavy burden ofproof." Huntington Construction, Inc., ASBCA No. 33526, 89-3 BCA**~** 22,150 at 111,479 (citing Charles T. Parker Construction Co. v. UnitedStates, 433 F.2d 771 (Ct. Cl. 1970)). In orderto qualify as a Type II differing site condition, "theunknown physical condition must be one that could not be reasonably anticipated by the contractor from his study ofthe contract documents, his inspection ofthe site, and his general experience[,] ifany, as a contractor in the area." Randa/MadisonJoint Venture Illv. Dahlberg, 239 F.3d 1264, 1276 (Fed. Cir. 2001) (quotingPerini Corp. v. UnitedStates, 381F.2d403,410 (Ct. Cl. 1967)). The contract documents and soil borings clearly showthe soil was typical for the area (finding 23). Contract borings are the most significant indicator ofsubsurface conditions. Nova Group, Inc., ASBCANo. 55408, 10-2 BCA**~** 34,533 at 170,322. We agree with the government's expertthat it is highly unlikely thatbased on the soil borings in the contract, variations in the soil would exist in 20 foot increments. What was apparent was that appellant could not remove some ofthe pilings using its usual means and methods ofextraction. The plain fact that they could not be removed does not necessarily mean, absent further evidence, that it must be as appellant contends. Here, appellanthas offered no further evidence to prove its case thatthe inability to extractthe piles was caused by a Type II differing site condition. Appellant speculates that because it had difficulty removing some ofthe sheetpilings, a Type IIdiffering site condition must have existed. Its proofofthe differing site condition consists solely ofits difficulty in removing sheetpilings. This circular argument cannotprevail. Thus, appellant has failed to meet its burden that it encountered a Type II differing site condition. Appellant further contends that because it was previously compensated for leaving pilings in the ground at various otherpoints along the work site that it proves that the Corps "recognizedthat these sheet pilings were an asset that belongedto Pittman, and Pittman was entitled to an equitable adjustment for the loss ofthis asset" (app. reply br. at 12). We disagree. To the extentthat appellant argues that its "prior course ofdealing" with the government should dictate the outcome ofthis matter, we 22disagree. In ourprevious decision underthe timber mat claim, underthe subject contract, we stated the following: Section 223(1) ofthe Restatement (Second) of Contracts (1981) defines a course ofdealing as: "a sequence ofprevious conduct between the parties to an agreement which is fairly to be regarded as establishing a commonbasis ofunderstanding for interpreting their expressions and other conduct." Section 1-205(1) ofthe Uniform Commercial Code (U.C.C.) defines "acourse of dealing" as: "asequence ofprevious conduct between the parties to a particulartransaction which is fairly to be regarded as establishing a common basis ofunderstanding for interpreting their expressions and other conduct." The courts have held that a single transaction cannot constitute a "course ofdealing" withinthe meaning of U.C.C. § 1-205(1). SeeInternational Therapeutics, Inc. v. McGraw-Edison Co., 721 F.2d 488, 492 (5th Cir. 1983); Product Components, Inc. v. RegencyDoor andHardware, Inc., 568 F. Supp. 651 (S.D. Ind. 1983). We have said in Western States Construction Company, Inc., ASBCA No. 37611, 92-1BCAii24,418 at 121,894: Whilethere is no magic number ofcontracts that mustbeperformedbefore this principle is applicable, the parties' prior dealings must be regular and/or numerous enough to cause a reasonable expectation that the conductrelied upon was not mere accident or mistake, but was the performance actually expected by the other party. C.R. Pittman, 08-1 BCAii 33,777 at 167, 178. The record demonstrates that these other instances ofcompensating appellantto leavepilings in the ground were done bilaterally under the Changes clause (app. supp. R4, tab 36). We assume that the Corps made a decision in its best interest and discretion to leave those pilings in place. With regard to the pilings that are the subject ofthe claim at issue, leaving the pilings in the ground was done for appellant's convenience

- i.e., it could not remove them; and not for the benefit ofthe Corps. The fact that the Corps chose to compensate for one and notthe otherwas reasonable. As appellant failed to prove the existence ofa Type II differing site condition, the alleged crane damage due to excessive effort to remove the questioned sheet pilings is also denied. 23ASBCA No. 57388FloodEvents Claim Appellant alleges that it is entitled to the standby costs associated with the TRS remaining on thejob longerthan anticipated. Unlike the timber mats (which were deemed "material" by the Board in C.R. Pittman, 08-1BCA,33,777 at 167,177-78, and thus consumed), appellant contends that the TRS is similarto items listed in the equipment schedule (EP 1110-1-8) such as workbarges and platforms (app. br. at 14). Because appellant supplied its own TRS platform and theproject went beyondthe original 900 contract days, appellantbelieves that it "is entitled to an equitable adjustment to compensate it for the ownership and operating costs associated with its investment in this equipment" (id. at 18). The Corps concedes that appellant did incur costs associated with delays due to the 109 flood events. However, the Corps avers that it already compensated appellant for those delays and appellanthas failed to establish that it is entitled to anything further. (Gov'tbr. at 20) Specifically, the Corps contends that appellant recovered the full purchase and fabrication cost ofthe TRS and the elevated work platform, etc., throughprogress payments (id. at 21, 23). With regard to the classification ofthe TRS and other items mentioned above as equipment, the Corps believes that this classification is only relevant to determine quantum, not entitlement (id. at 26). Once appellant has recovered the full value ofthe item, regardless ofthe classification ofthe item as equipment or materials, through progress payments, the Corps contends, "itno longerhas an ownership cost associated withthat item" (id. at 28). To support its proposition, the Corps citesHicks & Ingle Co. ofVa., Inc., ASBCA No. 39711, 90-2 BCA,22,897, where we heldthat the clear language ofthe payments clause ofthat contract dictated that equipmentthat was fully paid for viaprogress payments became the sole property ofthe government. Appellant replies thatthe Corps "bought" the use ofthe TRS on a lump sum basis for 900 days. The invoices submitted to the Corps did not represent the full cost ofpurchasing and fabricating the TRS and construction bridge. (App. reply br. at 2; tr. 11158-59) Appellant distinguishedHicks by pointing outthat in the present case, the Corps never claimedthat it was entitled to keep the construction bridge and TRS after the Soniat Canaljobwas completed; while in Hicks, the government did in fact make such a claim (app. reply br. at 6). Contrary to the Corps' assertion, the ultimate question ofwhetherthe ownership costs for the TRS and associated items are allowable under the contract does indeed boil down to whetherthe items can be categorized as equipment (and thus an allowable delay costunderthe contract) or materials. Appellant's expert, Dr. Householder, explainedthat in the construction industry, the standardterm "equipment" is usedto define all items broughtto thejobto assist in the construction process. Equipment canbe broken down into two categories: (1) production 24(equipment broughtto thejobto accomplish a single purpose); and (2) support (equipment broughtto thejobto assist in the work

- i.e., scaffolding). Thus, Dr. Householder opined that the sheetpiling, bridge sections, and structural bracing are support equipment. (App. supp. R4, vol. II, tab 29 at CRP 1098) The Corps did not offer any experttestimony, but does point to several references in the record as well as a previous decision to dispute appellant's expert opinion. Specifically, the Corps alleges thatthe work platform/IRS was not simply constructed to assist in the performance or execution ofthe contractwork, but was a required feature ofthe contractwork. 

### It cites thatthe government estimators considered all ofthe TRS components, including the sheetpiles and structural bracing as well as all items that went into the construction ofthe elevated workplatform to be materials. (R4, vol. I, tab T) Moreover, the sheetpiling descriptive literature and leasing agreement with SkyLine Steel referencedthem as construction materials (supp. R4, tab 15 at 3) or "materials" (app. supp. R4, vol. I,tab 17). The Corps cites a previous decision from the Engineer Board that refers to sheetpiles as "materials." 

### See JA. Jones Construction Co., ENG BCANo. 6348 

### etal., 00-2 BCA

### if 31,000. Finally, the Corps refers to the equipment manual (EP 1110-1-8) and notes that it contains no equipmentthat is remotely similar to the workplatform/IRS. Thus, the Corps concludes thatthe function ofthe workplatform/IRS does not accord with the common sense understanding ofthe term "equipment" and appellant's position is not well taken. (Gov'treply br. at 47-49) We agree. The Corps viewedthese items as materials and appellant never questioned their categorization until the cost dispute arose. We are unpersuaded by appellant's arguments and evidence to the contrary. Accordingly, we hold thatthe TRS system consisted ofmaterials that did not transform into equipment when puttogether into an elevated platform and temporary retaining structure. As such, the appeal is denied. 

### ASBCA No. 57688 GravitySewer Claim Appellant contends that it encountered a Type I differing site condition with regard to the gravity sewer line portion ofthe contractbecause there was avariation between the expected conditions and what it actually encountered atthe site. Specifically, the contract drawings showedthatthe gravity sewer line running parallel to the sewer force main, while in actuality the gravity sewer line ran underneath the sewer force main, in some places, and approximately two feet lowerthan the elevation in the contract. (App. br. at 29) Thus, appellant contends thatrequiring a contractor "toproceed with the work and to assume responsibility for any damage that might occur, without agreeing in advance to compensate Pittman for repairing this damage, is a breach ofcontract, and is contrary to the purpose ofthe Differing Site Conditions Clause." To support its propositionthat it did not have a duty to proceed with

25construction until the issue was settled, it citesJ. Parr Constr. & Design, Inc. v. UnitedStates, 996 F.2d 319 (Fed. Cir. 1993) (table)5 as authority. (App. br. at 30) The Corps argues that appellant has not met its burden ofproofto establish the existence ofa differing site condition because it presented no evidence that it reasonably relied upon its interpretation ofthe contract and contract-related documents. Moreover, the Corps contends that the record is devoid ofevidence showing the "differing" condition it actually encountered in the field; appellant relied on "conclusory statements and vague and unsubstantiated allegations." Furthermore, the Corps avers that the drawings that appellantprepared for the installation ofconflict boxes that showedthe existing utilities (Pittman drawings), including the gravity sewer and sewer force main were "three and a halffeet" (tr. 2/114-15) to "five foot, eight inches" apart (tr. 2/55-56). Furthertestimony from the ACO (Stephen Hinkamp) and the project engineer (Robert Guillot) for the canal work indicated that the distances between the lines on the Pittman drawings were similarto whatwas indicated onthe contract drawings (gov'tbr. at 49- 50). Finally, appellant did not incur any costs associated with its claim because it did not performthe gravity sewer line work (id. at 54). Although not addressed in the COFD, appellant's Type I differing site condition claim is intertwined with its breach ofcontract claim. During the hearing, the CO testified with regard to the reasons appellant's claim was denied: 

### "I didn't deny the claim for any reason related to the

...alleged differing site condition

.... I found the claim didn'thave merit because C.R. Pittman didn't install the sewer line and did nothing to expose whatever differing site condition that they felt existed." (Tr. 2/267) Thus, the Type I differing site condition claim was denied by implication (finding 55).
To recoverunder a Type I differing site condition claim, the contractorbears the burden ofproofshowingthat conditions actually encountered differed materially from those "indicated" in the contract. Foster Constr. C.A. & Williams Bros. Co. v. UnitedStates, 435 F.2d 873, 881 (Ct. Cl. 1970). A contractor cannotbe eligible for an equitable adjustment for Type I changed conditions unless the contract indicated what those conditions would supposedly be. P.J MaffeiBldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984); S.T.G. Construction Co. v. UnitedStates, 157 Ct. Cl. 409, 414 (1962). Here, appellant fails to meetthat burden. Itcould not offer any proofofwhat it encountered because it neverbegan construction (finding 52). The applicable contract clause and numerous cases all contemplate that a comparison between the drawings and whatwas actually encountered at the site mustbe done in orderto prove that a

5 Appellant cites to the tables showing that the Federal Circuit affirmed "without opinion" the Court ofFederal Claims decision. However, the tables are not citeable as precedent. Thus, we discuss the case reported below at 24 Cl. Ct. 228 (1991). 26material difference exists. Appellant cannot prevail on a differing site condition withoutthis crucial piece ofthe puzzle. Thus, appellant's arguments must fail. Appellant's reliance on J Parr Constr. is misplaced as that case stands for the proposition that the duty to proceed with work under a contract is not absolute when conditions atthejob site differ materially from those in the contract so that a contractorpossesses a reasonable fear ofdanger. In J Parr Constr., the contractor was terminated for default because it abandoned the project (due to unfounded safety concerns), poorwork quality, and failed to comply with environmental regulations. This is not applicable to the instant appeal as appellant nevernotified the Corps that it was not safe to do the contractually-required work.6 Further, the Corps' actionto descope the contractto award the work to B&K was also reasonable. The record shows that the Corps awarded the work to B&Kon 24 April 2009, nearly three years after appellant had demobilized the work site (finding 47) and the government had considered the work abandoned. Accordingly, appellant's breach ofcontract claim is denied.

The appeals are denied. Dated: 4 February 2015

I concur

Administrative Judge Acting Chairman Armed Services Board ofContractAppeals CONCLUSION

OWEN C. WILSON Administrative Judge Armed Services Board ofContractAppeals

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

6 In any event, Court ofFederal Claims decisions are not binding precedent for this Board. 27I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA Nos. 57387, 57388, 57688, Appeals ofC.R. Pittman Construction Co., Inc., rendered in conformance with the Board's Charter. Dated:

28 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals