GRANTED IN PART: June 21, 1993 GSBCA 11796 BECKMAN CONSTRUCTION COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. James F. Beckman, President of Beckman Construction Company, Fort Worth, TX, appearing for Appellant. Robert C. Smith, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges LaBELLA, NEILL, and HYATT. LaBELLA, Board Judge. Beckman Construction Company (Beckman or appellant) is appealing the decision of the General Services Administration (GSA or respondent) contracting officer which denied its claim for an equitable adjustment for additional dewatering work required when it encountered "quicksand" in the excavation work it was doing incident to constructing a tunnel and digging an elevator pit at the Federal Building in Newark, New Jersey. Beckman claims that the Government had superior knowledge of the subsurface conditions which Beckman would encounter, but that it failed to disclose this information. In the alternative, Beckman alleges that the "quicksand" encountered amounted to a type two differing site condition. Respondent alleges that the information in question was of no value in determining the subsurface conditions Beckman might encounter. Respondent also argues that Beckman was put on notice of potential ground water problems by the specifications and drawings of the contract, thereby shifting the duty to appellant to request further information. We grant this appeal in part because the respondent possessed material superior knowledge that it failed to disclose to appellant prior to bid submission. 2 Findings of Fact Contract GS02P90CUC0021 was awarded to Beckman on May 24, 1990. Appeal File, Exhibit 1. Under the contract Beckman was to construct a tunnel which would connect the old Federal Building with a tunnel, then under construction, which would lead to the new Martin Luther King Federal Building across the street. In addi- tion, Beckman was to modify two elevators to allow them one additional stop below the then current bottom level. This work required excavation and reconstruction of the elevator pit, the deepest portion of which would now be located 29 feet below the elevation of the sidewalk. Transcript at 13. Construction on the Martin Luther King building began in 1987. Prior to that construction, the respondent commissioned a soils and foundation report on the building site. This report was completed in February of 1987. Appellant's Exhibit 1. This report shows ground water at the observation well closest to appellant's work site, B-15, at eighteen feet nine inches on January 27, 1987, and twenty-two feet zero inches on February 23, 1987. Id.; Transcript at 36, 37. The three borings closest to the work site were numbers 5, 6, and 7. Transcript at 33. At boring 5 no water level is recorded, at boring 6 the ground water level is eighteen feet three inches, and at boring 7 the ground water level is eighteen feet zero inches. Appellant's Exhibit 1. Boring 5 shows the nature of the soil in the area to be "brown fine to course sand, trace silt, trace gravel (medium dense)" in the eight to sixteen foot depth, "grading to medium sand, trace silt @ 16'-6"," and "Red-brown fine sand, some silt (medium dense)" at a depth of twenty-five feet. Id. at Boring 5. Borings 6 and 7 show similar soil characteristics. Id. at Borings 6 and 7. Despite respondent's solicitation of the instant project which required the contractor to excavate an elevator pit to a depth of twenty-nine feet, respondent did not include the soil borings for the Martin Luther King building project with the solicitation, nor did it affirmatively notify bidders that these borings existed. One bidder did ask for the borings and was allowed to see them. Its bid, moreover, was over half a million dollars more than Beckman's low bid for the project. Transcript at 76-77. The contracting officer does not know of any other bidder which requested the boring logs. Id. In fact, the contracting officer did not even know the logs existed until after the contract was awarded. Id. at 74. Mr. Beckman, appellant's president, testified that in his experience encountering fine sand mixed with water is rare. Transcript at 28. The contracting officer testified that this was only the second instance in ten years in which he was aware of these conditions at an excavation site. Id. at 80-81. However, the GSA project manager for this contract testified that 3 sand and water mixed is not an unusual soil condition in the coastal New Jersey area where Newark is located. Id. at 85. Mr. Beckman admitted that he had no knowledge of normal conditions in the area in which this contract was performed. Id. at 21. No witnesses were offered as experts on the soil conditions in the area, and we find the testimony in this regard to be unpersuasive. Appellant presented no evidence to refute the testimony of the GSA project manager and we are unable to conclude what conditions are normal for the construction site. Mr. Beckman also testified that had he seen the boring logs prior to the time his company bid the contract he would have included the additional cost of a dewatering subcontractor in his bid because the boring logs indicate a condition that requires wellpointing, a process of dewatering an excavation site that his company is not equipped to perform. Transcript at 10, 28, 35. A wellpoint is a hollow rod with a perforated intake at the lower end which is driven into the ground and connected to a pump for the removal of water. A wellpoint system consists of a number of wellpoints which are connected to a header which is attached to a pump, and is used to lower the water table at an excavation site. Cyril M. Harris, Dictionary of Architecture and Construction, 540 (1975). Prior to resorting to wellpoints, Beckman attempted several less expensive means of dewatering. As a result of the sandy soil mixed with water, Beckman's attempts at traditional methods of dewatering the excavation site failed. Its submersible electric pump clogged with silty sand and burned out, Transcript at 47, and attempts to drive steel sheeting into the perimeter to shore up the sides of the excavation failed. Id. at 50. While Beckman attempted to convince the Board that these failed attempts were encouraged by GSA's project manager, it is clear from the testimony that the project manager only discussed possible solutions and did not dictate, or rule out, any particular methods of proceeding with the dewatering operations. Id. at 92-94. Beckman is solely responsible for the methods chosen. Appellant incurred a total expense of $10,014.98 from August 23 to August 29 for dewatering work in connection with the tunnel, and $80,919.52 from October 10 to December 29 for dewatering work on the elevator pit. Amended Claim, dated January 15, 1993, Tabs for direct and indirect costs. Of the elevator pit costs, $50,548.13 were expended on wellpointing alone. Id. These cost figures are not disputed by the respondent, which argues only that appellant is not entitled to any compensation for the excess costs incurred. Beckman hit water in the tunnel portion of the project on August 23, and tried conventional methods of water removal until August 29 when it notified the respondent it had a problem with 4 the ground water mixed with sand. Appeal File, Exhibit 8. The respondent took the position that the "quicksand" was an existing, rather than differing, site condition for which no change order or equitable adjustment was necessary, but agreed to raise the tunnel floor in order to avoid the problems of the "quicksand." Id., Exhibit 9; Transcript at 90-92. The new design circumvented the subsurface problems. Excavation to the raised level was then accomplished without the need for wellpoints. Transcript at 92. Work on the elevator pit portion of the job was carried out after the tunnel excavation. Beckman employees struck water in the elevator pit excavation on October 10, 1990. Transcript at 48. The record indicates that Beckman had knowledge of the boring logs sometime before October 2, 1990, when it mentioned them in a letter addressed to GSA. Appeal File, Exhibit 10. Despite its earlier experience with the "quicksand" in the course of excavating the tunnel, and its knowledge of the existence of the boring logs, Beckman expended over $30,000 attempting methods of dewatering short of hiring a wellpointing sub-contractor. This money and these efforts were expended in an attempt to keep costs below that of wellpointing, but were ultimately wasted. Transcript at 55-56. The contract provisions relating to dewatering requires the contractor to: F. Dewatering: Prevent surface water and subsurface or ground water from flowing into the excavations and from flooding project site and surrounding area. 1. Do not allow water to accumulate in excava- tions. . . . Provide and maintain pumps, well points, sumps, suction and discharge lines, and other dewatering system components necessary to convey water away from excavations. Appeal File, Exhibit 1, page 02200-4 at 3.01 F. Discussion Beckman argues that the respondent had a duty to disclose its superior knowledge of the subsurface conditions that Beckman was likely to face on this project, and that the breach of this duty entitles Beckman to a full recovery of the dewatering costs on this project. Respondent avers that the solicitation, which became the contract, put bidders on notice of the subsurface conditions they were likely to encounter, and that the information in the boring logs was not relevant to the work site where this contract was performed. Specifically, respondent contends that the solicitation provision on dewatering puts a contractor on notice that ground water mixed with fine sand is a 5 distinct possibility because of the mere mention of the term "well points" (a method of dewatering sandy soil defined above) in the solicitation and contract. Respondent's Post Hearing Brief at 9. Beckman counters that the language in the dewatering clause of the contract is merely boilerplate, and does not satisfy respondent's obligation to disclose actual knowledge of subsurface conditions in the area. We agree with appellant. Where, as here, the respondent has actual knowledge that a contractor is likely to encounter ground water mixed with fine sand in the course of excavation work, the mere listing of several dewatering methods, including one which would work in the conditions likely to be encountered, is not sufficient to satisfy respondent's duty to disclose superior knowledge of material information. The duty to disclose superior knowledge applies in situations where: (1) a contractor undertakes to perform without vital knowledge of a fact that affects performance costs or duration; (2) the respondent was aware the contractor had no knowledge of and had no reason to obtain such information; (3) any contract specification supplied misled the contractor, or did not put it on notice to inquire; and (4) the respondent failed to provide the relevant information. Petrochem Services, Inc. v. United States, 837 F.2d 1076 (Fed. Cir. 1988) (citing American Shipbuilding Co. v. United States, 654 F.2d 75, 79, (Ct. Cl. 1981)). In the case at hand the respondent possessed soil borings for a project located directly across the street from appellant's work site. These borings showed ground water mixed with fine sand at a depth of eighteen to twenty-two feet below street level. Nevertheless respondent let a contract to excavate to a depth of twenty-nine feet below street level without providing these borings, stating they were available for viewing, or providing notice that water mixed with sand had been found in the adjacent work site at levels above those this particular contract called for. Respondent's use of a standard type clause specifying various dewatering methods, including wellpointing, does not serve to put a contractor on notice of the highly problematic subsurface conditions of which the respondent has actual knowledge. In fact, this general clause covers several different dewatering methods used under various conditions and tends to lead a contractor into the mistaken belief that the Government did not possess specific information about the actual soil conditions in the vicinity in which the work was to be performed. Taking the elements of a superior knowledge claim in turn, the Board concludes that all the elements are satisfied. The 6 information withheld by the respondent was relevant to Beckman's cost for the project. Even though the boring logs were not for the exact site on which Beckman was to work, they were taken from the property directly across the street, and would give a contractor a good idea of the subsurface conditions in the immediate area. The respondent knew, or should have known, that the information was unknown to appellant and that appellant had no way of knowing the logs even existed. The contract specification did not disclose that the respondent had specific knowledge of subsurface conditions. In fact, its general nature tends to indicate that respondent had no idea what the subsurface conditions might be and was merely trying to cover all contingencies. Appellant was justified in believing that if the respondent had material knowledge in its possession it would honor its affirmative duty to disclose that information. Further, Mr. Beckman testified that had he seen the boring logs he definitely would have factored in the cost of a dewatering subcontractor. We conclude that the information was relevant, and the respondent breached its duty to disclose its superior knowledge. Accordingly, the cost of the wellpointing work for the elevator pit, $50,548.13, is awarded to appellant. With respect to the tunnel, the respondent contends that the money spent on dewatering efforts was wasted because the floor of the tunnel was eventually raised to avoid the problem. The costs at issue were incurred during the seven day delay between appellant's striking ground water and notifying the respondent of the problems it was encountering. However, respondent's representative's decision to redesign the tunnel, allowing the excavation to be raised slightly, was certainly influenced by the extreme difficulties encountered by Beckman, and the fact that he believed it would be necessary to wellpoint the tunnel in order to complete the work as designed. At the time the work in question was undertaken Beckman had not yet seen the boring logs, and had not yet tried any methods of dewatering. The methods employed in the attempt to solve the "quicksand" problem were undertaken reasonably, and appellant's recovery should not be thwarted because the respondent altered the design of the tunnel, or because the methods failed. The cost of these efforts was not factored into appellant's bid because the respondent withheld knowledge of subsurface conditions which it had a duty to disclose. Accordingly, Beckman is awarded $10,014.98 for the costs of these efforts. Other work done on the elevator pit prior to the decision to wellpoint, however, is a different matter. That work was of no benefit to the respondent, was not done pursuant to the direction of the respondent, its agents, or the contract, and was undertaken unreasonably in the hope that wellpointing would not be necessary. The contract calls for dewatering, and the contractor was left to its own devices to choose the appropriate method. While Beckman did discuss its options with the 7 respondent's representatives, no one instructed Beckman on how to proceed. Beckman undertook its chosen methods after similar attempts had failed in late August when ground water was encountered in the tunnel excavation, and after it discovered the existence of the boring logs that Mr. Beckman testified made him aware that wellpoints were required to complete the excavation. Under these circumstances we cannot hold that use of a non- wellpoint dewatering method was reasonable, and we cannot hold the respondent liable for these extra costs. Given our resolution of this issue we see no need to discuss appellant's alternative theory for relief under the differing site conditions provision of the contract. The relief provided would be no different under appellant's alternative theory even if we agreed with its argument. Decision This appeal is GRANTED IN PART. Appellant is awarded $60,563.11 with interest pursuant to the Contract Disputes Act, 41 U.S.C. 611 (1988). VINCENT A. LaBELLA Board Judge We concur: EDWIN B. NEILL Board Judge CATHERINE B. HYATT Board Judge