RESPONDENT S MOTION TO DISMISS DENIED; APPEAL DENIED: January 31, 1997 GSBCA 13399 RESOURCE CONSERVATION CORPORATION, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Joseph A. Camardo, Jr., Auburn, NY, counsel for Appellant. Nancy E. O Connell, Office of Regional Counsel, General Services Administration, Boston, MA; and Sharon J. Chen, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges WILLIAMS, DeGRAFF, and GOODMAN. GOODMAN, Board Judge. Resource Conservation Corporation (RCC) appeals respondent s, the General Services Administration s (GSA s), contracting officer s decision denying an equitable adjustment for alleged differing site conditions. The parties agreed to submit the case for a decision based upon the written record pursuant to Board Rule 111. Respondent moves the Board to dismiss the appeal for lack of jurisdiction. Respondent also contends that the claim is barred by receipt of final payment, and because RCC failed to promptly give the contracting officer notice as required by the Differing Site Conditions clause. Finally, if the Board determines that it has jurisdiction, and that the claim is not otherwise barred, respondent contends that RCC has failed to prove the elements necessary to prevail on a differing site conditions claim. We deny the motion to dismiss for lack of jurisdiction and find that appellant s claim is not barred by receipt of final payment or failure to give prompt notice. We deny the appeal, as appellant has failed to prove the existence of a differing site condition. Findings of Fact 1. On March 3, 1993, GSA issued solicitation number GS-01- P93-BZC-0038 (the solicitation) for pavement/site improvements and fuel oil storage tanks removal at the U.S. Border Station in Jackman, Maine (the site). Appeal File, Exhibit 5. 2. The site is a parcel of land of approximately 40,000 square feet on which the Border Station facility is located. Most of the site is covered in asphalt. Appeal File, Exhibits 1-5. 3. The solicitation required the removal of two fuel oil tanks and existing asphalt pavement, and the reconstruction and re- paving of asphalt paved areas. Appeal File, Exhibits 1-5. 4. The solicitation incorporated plans and specifications, including discipline sheet numbers C1, C4, C5, and C6, prepared by Oak Point Associates for GSA. Appeal File, Exhibits 1-5. 5. Discipline sheet number C1, entitled Exist. Conditions/ Removals Site Plan," purports to show pre-construction, existing conditions on the site and various removal operations to be performed by the awardee. Appeal File, Exhibit 1. 6. Discipline sheet number C4, entitled Site Plan-Parking Lot Repair, indicates post-construction specifications and various removal operations to be performed by the awardee. Appeal File, Exhibit 2. 7. Discipline sheet number C5 shows nine construction specifications. Detail number 1 on discipline sheet number C5 is entitled Asphalt Concrete Pavement Detail." It indicates the requirements for the final finish on the reconstructed pavement areas. Appeal File, Exhibit 4. 8. Discipline sheet number C6 shows the results of four borings performed on the site. The log shows depth of pavement at each of the borings as follows: B-1 0.2 feet B-2 0.2 feet B-3 0.6 feet B-4 0.5 feet Appeal File, Exhibit 3. 9. Discipline sheet numbers C1 and C4 identify the locations of borings B-1, B-2, B-3, and B-4 on the site. Appeal File, Exhibits 1, 2. The engineer who certified the discipline sheets states: The locations of these four borings (B-1, B-2, B-3, and B-4) were chosen to provide a representation of the existing conditions on the site. Respondent s Record Submission, Exhibit C,  5. 10. On May 4, 1993, GSA awarded contract number GS-01-P93- BZC-0038 (the contract) to RCC in the amount of $177,834. The contract incorporates the solicitation and discipline sheet numbers C1, C4, C5, and C6. Appeal File, Exhibit 5. 11. The contract incorporates by reference the clause contained in Federal Acquisition Regulation (FAR) paragraph 52.236- 2(a), entitled Differing Site Conditions (APR 1984), which reads: (a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract. (b) The Contracting Officer shall investigate the site conditions promptly after receiving the notice. If the conditions do materially so differ and cause an increase or decrease in the Contractor's cost of, or the time required for, performing any part of the work under this contract, whether or not changed as a result of the conditions, an equitable adjustment shall be made under this clause and the contract modified in writing accordingly. (c) No request by the Contractor for an equitable adjustment to the contract under this clause shall be allowed, unless the Contractor has given the written notice required; provided, that the time prescribed in (a) above for giving written notice may be extended by the Contracting Officer. (d) No request by the Contractor for an equitable adjustment to the contract for differing site conditions shall be allowed if made after final payment under this contract. Appeal File, Exhibit 5 at 11. 12. GSA issued the notice to proceed on June 11, 1993. Appeal File, Exhibit 6. 13. RCC removed the two fuel oil tanks in July and early August 1993, and curb removal was concluded on July 26, 1993. Respondent s Record Submission, Exhibit A,  4; Appeal File, Exhibit 8. 14. The contracting officer s representative (COR) testified that he traveled to the site frequently throughout the summer of 1993. In order to monitor the tank removal and replacement, curb removal, and flag pole removal and replacement, the COR was on site on July 12, 13, and 26, and August 3, 1993. Respondent s Record Submission, Exhibit A,  4. 15. The COR testified that with regard to work related to curb removal, his belief was that conducting such work would not be possible without being able to see the depth of existing asphalt. Also, with regard to the removal of the fuel oil tank located on the site near the garage and between borings B1 and B2, the tank was located directly under a concrete pad. As the concrete pad abuts the asphalt, he believed it would be impossible to excavate the pad without disturbing the asphalt, at which time the depth of existing asphalt would have been visible. Respondent s Record Submission, Exhibit A,  5. 16. RCC s president testified that the oil tanks were located beneath a concrete pad, not under asphalt. Therefore, it would have been impossible to discover any additional asphalt depths during this phase of performance. Appellant s Record Submission, Affidavit of Daniel Tarrats (Tarrats Affidavit) (July 5, 1996)  14.b. 17. RCC s handwritten job logs contain a notation for July 27, 1993 - "asphalt . . . 11 at canopy." Respondent s Record Submission, Exhibit E, Tab 3. 18. The COR testified that during his site visits on July 12, 13, and 26, and August 3, 1993, RCC did not inform him that RCC had encountered existing asphalt in depths different from that indicated in the contract documents. Respondent s Record Submission, Exhibit A,  6. 19. RCC s president further explained the basis and discovery of the alleged differing site condition: Based upon the borings, and the findings of our site visit, the average depth [of the asphalt] was liberally determined to be approximately 4" to 5". Based upon these reasonable conclusions, we determined that approximately 375 cubic yards of existing asphalt would have to be excavated and disposed of. Once we began excavation, RCC discovered . . . the average depth ranged from 6" to 11" over the entire paved area, including the areas around Borings B1 and B2, which indicated a depth of 2.4". The average thickness actually encountered was 8" throughout the site. . . . Upon discovery of this Differing Site Condition , we immediately notified the Government in a letter dated August 19, 1993. . . . RCC reasonably presumed that the parking lot portion of this Contract constituted a traditional pavement job consisting of: peeling away the old asphalt; disposing of the removed asphalt material; tamping the existing gravel base and then repaving. . . . Due to the Differing Site Condition, we were forced to remove almost 2« times the amount of existing asphalt than what was reasonably anticipated (approximately 900 cubic yards). As a result of this excess material, we were forced to substantially change a method of paving operations, to the following: because the asphalt depth was substantially greater than anticipated and because only 3«" of paving material was to be installed, and because the contour of the site was to remain the same, the excess asphalt had to be ground by a grinder in order to raise the sub-base. When grinding the asphalt, we are left with an amorphous, rough and uneven surface, which necessitated a regrading of almost the entire lot; the entire lot had to be leveled with a bulldozer; we had to re-survey the grade with transits; the entire site had to be thoroughly re- compacted with heavy rollers; new 3«" paving was installed; excess ground asphalt not utilized in the sub- base needed to be disposed of. Appellant s Record Submission, Tarrats Affidavit  8-11. 20. By letter dated August 19, 1993, RCC alleged the existence of a differing site condition due to the thickness of the existing asphalt pavement on the site. The letter stated, in relevant part: The contract requires the removal and replacement of asphalt, as well as the replacement and supplementation of the aggregate base as needed, so that there is a 12" base, and a 3«" asphalt pavement. (Detail Sheet 9, Detail No. 1). The only information received regarding this portion of the contract, is contained in Detail Sheet 9. We reasonably presumed, that the existing pavement, consisted of approximately the same amount of aggregate, and asphalt, as shown in this drawing. This conclusion was based on the following: 1. The required levels of aggregate, and asphalt, that were shown in the drawing, were within the range of standard paving procedures. 2. It had to be assumed that if the actual conditions were vastly different, from what would normally be expected, the contract documents would reflect such a condition, especially since a site visit would not reveal a subsurface condition. Resource Conservation Corp., bid this project based upon this reasonable interpretation, of the existing pavement condition. However, upon initiation of the excavation, we have discovered that the existing pavement, consists of 6" to 11", of asphalt. . . . As a result of this differing site [condition], we will have to expend a substantial amount of additional labor and material, in order to arrive at the site condition, required under this contract. Appeal File, Exhibit 7. 21. In support of the quantum portion of its claim, RCC s president testified: RCC was forced to expend a substantial amount of additional labor, material and cost performing to the contract requirements, including: The added labor and cost involved in the removal and disposal of asphalt in excess of what was anticipated and indicated in the borings; the added labor and material cost involved in supplying and installing the additional sub-base necessitated by the unanticipated asphalt depths and the contract requirement that the site contour remain the same. Appellant s Record Submission, Tarrats Affidavit  12. 22. By letter dated August 24, 1993, GSA advised RCC that a representative would visit the site to verify the thickness of the asphalt. Appeal File, Exhibit 8. 23. The COR testified that RCC s president contacted him and informed him that RCC would begin removal of existing pavement on September 15, 1993. The COR further testified that he informed RCC s president that he would be at the site on the morning of September 15, 1993, to observe the removal of existing pavement and review RCC s allegation made in its August 19, 1993, letter of a differing site condition with regard to the depth of existing asphalt. Respondent s Record Submission, Exhibit A,  9. 24. The COR testified that on September 15, 1993, he met RCC s president on the site for the express purpose of examining RCC s allegation of a differing site condition. He further testified that he was on site before the arrival of the equipment that was used to remove the existing pavement. The work began on September 15, 1993, and was completed on September 16, 1993. Respondent s Record Submission, Exhibit A,  10. 25. The COR testified as to his observation as to the depth of the existing asphalt: On September 15, 1993 I measured the existing depth of asphalt near the B-3 boring site with a tape measure and confirmed that it was substantially the same as indicated on the boring log reported on Sheet C6 of the Contract - being approximately between 7.25 inches and 7.5 inches in depth. [RCC s president] was standing with me while I made this measurement. When I told him that my measurement was essentially the same as the B-3 boring log indicated, he did not disagree. Furthermore, I moved across the Property at the time in an east to west direction making multiple spot checks of the depth of existing asphalt pavement. [RCC s president] was also with me when I made these measurements. All these checks indicated that the depth of existing asphalt was consistent with the depths indicated in the test boring logs in the Contract. At no location did I measure any asphalt which was 11 inches in depth. Nor did I measure any asphalt which was as much as 8 inches in depth. At no time did [RCC s president] direct me to any area of the Property where the existing asphalt was 11 inches deep, nor did he show me any existing asphalt on site which was 11 inches deep. Respondent s Record Submission, Exhibit A,  11. 26. RCC s president testified concerning the COR s description of his site visit as follows: During [the COR s] site visits, the minimum depth of asphalt he could locate anywhere on the site was 7.5". In fact the majority of the measurements taken by him were in excess of 8". Despite numerous attempts, [the COR] could not locate any area where the depth of the asphalt was 2.5" as indicated in Borings B1 and B2. [The COR] stated that I did not direct him to any area where the asphalt depth was 11", as we alleged. [He] was only on site for a few hours at a time, on sporadic days and without previous notice given us. At the same time, we had 12 men and 6 pieces of equipment operating. Therefore, it was unreasonable and it would constitute bad business judgment for us to stop work and wait for [the COR] to show up at the site on one of his unscheduled visits. The areas where the 11" of asphalt were encountered had been disturbed prior to [the COR s] September 15, 1993 site visit.[] Appellant s Record Submission, Tarrats Affidavit  15. 27. By letter dated June 2, 1994, GSA requested RCC to submit its invoice for final payment and an executed Release of Claims. Appeal File, Exhibit 11. 28. On June 10, 1994, RCC submitted its invoice for final payment. Attached to the invoice was a document entitled Release of claims which release[d] the United States from any and all claims arising under or by virtue of said contract or any modification or change thereof except as follows: Claim for additional asphalt disposal and removal in the amount of approximately $20,000.00. Please render contracting officer s final decision. Appeal File, Exhibit 12. 29. By letter dated June 24, 1994, GSA advised RCC that its claim for equitable adjustment could not be accepted and that the contracting officer was in the process of authorizing final payment. The contracting officer requested that RCC indicate to the contracting officer by July 1, 1994, whether or not it was going to pursue a claim relating to the alleged differing site condition. Appeal File, Exhibit 13. 30. RCC did not respond by July 1, 1994 as requested, and on July 5, 1994, GSA authorized final payment under the contract. Appeal File, Exhibit 15. 31. By letter dated July 20, 1994, RCC stated: I am writing to inform you that the thickness of the asphalt was not as indicated in the borings taken by Oak Point Associates. As witnessed by [the COR] the average thickness of the asphalt was greater than the thickness indicated in the test borings. The drawings indicate a thickness of approximately 7" in some areas and less than 3" in other areas. The average thickness based upon the test borings was 4"-5". The average thickness of the asphalt, was in fact greater than 8" throughout the site. In no place did we find any asphalt which was less than 3" as indicated by the test borings. We feel that it was reasonable to assume, that the average thickness of the asphalt, should be based upon, the average of all the test borings, as provided in the bid documents. This condition of having 8.5" thick asphaltic surface throughout the site, has resulted in substantial cost increases to R.C.C., and we want to be compensated for the additional work. Please advise us of your final decision regarding this matter so that we can proceed accordingly. Appeal File, Exhibit 14. 32. On September 20, 1994, GSA sent RCC a letter designated as a contracting officer s final decision denying RCC s request for equitable adjustment based on an alleged differing site condition. Appeal File, Exhibit 15. 33. By letter dated December 13, 1994, through its attorney, RCC appealed the September 20, 1994, letter designated as a contracting officer s final decision to this Board. Appeal File, Exhibit 16. The Board docketed this appeal as GSBCA 13113. 34. On March 2, 1995, before a complaint and answer had been filed, RCC filed a request for a dismissal of its appeal without prejudice, which the Board granted on March 9, 1995. Appeal File, Exhibit 17. 35. By letter dated June 23, 1995, and received by GSA on June 29, 1995, RCC submitted a claim for equitable adjustment relating to the alleged differing site condition. The quantum sought was $34,788.20. Appeal File, Exhibit 9. 36. In support of its claim, RCC submitted a narrative summary containing factual and legal arguments, and various exhibits which included correspondence (letters dated August 19, 1993, and July 20, 1994, referred to above) and information supporting its quantum. Except for the general allegations in the correspondence of depths in excess of that indicated in the boring logs, no supporting information was submitted as to the actual depths of the asphalt encountered or the quantities removed. Appeal File, Exhibit 9. 37. RCC s quantum of $34,788.20 was calculated by deducting its estimated (bid) price for paving from its actual costs for paving. Actual cost $76,142.20 Estimated price 41,354.00 $34,788.20 The estimated price was allegedly calculated by totaling the anticipated cost of removal of 375 cubic yards of asphalt, supplying and installing 763 tons of asphalt, and profit and overhead. Appeal File, Exhibit 9, Reference 1. The actual costs allegedly included the cost of grinding existing pavement, removing excess grindings, grading and paving over rough grade, additional work effort by RCC s superintendent and president, overhead and profit. The actual costs were supported with photocopies of checks to subcontractors, estimates of the additional hours spent by the superintendent and president, and financial statements to support the overhead rate. 38. By August 30, 1995, respondent had not issued a contracting officer s decision as requested in appellant s June 23, 1995 claim. RCC, by its attorney, filed a notice of appeal, as appellant considered the claim deemed denied by respondent. Appeal File, Exhibit 19. 39. On September 7, 1995, the Board docketed RCC s appeal as GSBCA 13399(13113)-REIN. Appeal File, Exhibit 20, see note 5 infra. 40. On September 11, 1995, the Board ordered respondent to issue a contracting officer s decision, and suspended proceedings until such decision was issued. Appeal File, Exhibit 21. 41. On October 5, 1995, the contracting officer issued a final decision. Appeal File, Exhibit 22. 42. RCC filed its complaint on January 19, 1996, and respondent filed an answer on February 16, 1996. The parties conducted limited discovery. 43. The parties agreed to submit the appeal for a decision on the written record. RCC filed its record submission on July 8, 1996, and respondent filed its record submission on September 24, 1996. Discussion Respondent s Motion To Dismiss for Lack of Jurisdiction Respondent moves to dismiss the appeal for lack of jurisdiction. Respondent bases its motion on the assertion that appellant has reinstated an appeal which was dismissed without prejudice after the expiration of a statutory time limit. Respondent relies upon the Board s decision in Bonneville Associates, Ltd. Partnership v. General Services Administration, GSBCA 13134(11595)-REIN, 96-1 BCA  28,122 (1995), appeal docketed, 96-1325 (Fed. Cir. Apr. 26, 1996). In that appeal, appellant withdrew its case before this Board and asserted the claim at the United States Claims Court, where the claim was dismissed for lack of subject matter jurisdiction. Appellant then attempted to return to this Board and continue its appeal where it was dismissed. The Board based its dismissal on the fact that the ninety-day statutory appeal period from the final decision had expired. The instant appeal presents different circumstances. The instant appeal was not actually a reinstatement of a prior appeal, even though it was erroneously docketed as such. With regard to the prior appeal, the correspondence, which was submitted to the contracting officer prior to the issuance of what was designated as a contracting officer s final decision, did not constitute a claim under the Contract Disputes Act of 1978, as the essence of the claim was for increased costs, and no demand for a sum certain had been made. Finding 28. In the absence of a claim, the contracting officer lacks authority to render an appealable decision. Thus, respondent s letter dated September 20, 1994, designated as a contracting officer s final decision, was not an appealable decision. See, e.g., H.L. Smith, Inc. v. Dalton, 49 F.3d 1563 (Fed. Cir. 1995); Pevar Co. v. United States, 32 Fed. Cl. 822 (1995); Rixie Iron and Metal Co., ASBCA 40835, 90-3 BCA  23,238. Appellant withdrew its initial appeal without prejudice before a complaint and answer had been filed, and before the Board could review the appealability of respondent s letter designated as a final decision. Finding 34. RCC thereafter submitted a claim to the contracting officer which included a detailed factual basis and quantum calculation for a sum certain. Findings 35, 36. The amount requested was less than $100,000, Finding 35, which required the contracting officer to render a decision within sixty days. When the contracting officer did not issue a decision within the required time period, appellant timely filed a notice of appeal of the contracting officer s failure to issue a decision, pursuant to the Contract Disputes Act of 1978, 41 U.S.C.  605(c)(5) (1994). Finding 38. The appeal was timely in that it was brought as an appeal of a deemed denial after the expiration of the statutory period which required the contracting officer to render a decision. The Board suspended proceedings and directed the contracting officer to issue a decision. Finding 40. On October 5, 1996, the contracting officer issued a decision denying the claim in its entirety, and the appeal proceeded. Finding 41. As the first appeal was not from a valid appealable decision, the instant appeal is not a reinstatement of the first appeal. The instant appeal was timely. Accordingly, respondent s motion to dismiss for lack of jurisdiction is denied. Appellant s Claim Is Not Barred by Final Payment RCC reserved a claim on its release of claims dated June 10, 1994. Finding 28. In a letter dated June 24, 1994, the contracting officer requested that RCC notify her by July 1, 1994, whether or not RCC would be pursuing an equitable adjustment claim for differing site conditions. Finding 29. Because RCC did not respond by July 1, 1994, respondent argues that the contracting officer believed that RCC did not have a present intention to submit an equitable adjustment claim. Respondent s Record Submission at 15. GSA made final payment to RCC on July 14, 1994. Finding 30. RCC did not again raise the issue of differing site conditions until July 20, 1994, when it submitted a letter asserting its claim. Finding 31. Respondent contends that the claim is barred by the portion of the Differing Site Conditions clause which reads, in relevant part: (d) No request by the Contractor for an equitable adjustment to the contract for differing site conditions shall be allowed if made after final payment under this contract. Finding 11. Respondent alleges that the contracting officer maintains that she cannot consider an equitable adjustment request regarding differing site conditions which was perfected after final payment under this contract, and that RCC failed to provide a proposal for equitable adjustment in accordance with the requirements and limitations set forth in the Equitable Adjustments Clause, GSAR 552.243-71 until June 23, 1995. Respondent s Record Submission at 15-16. Respondent s argument fails because appellant did reserve its claim in its release of claims submitted with its invoice for final payment dated June 10, 1994. Contrary to respondent s assertions, appellant need not perfect a claim prior to final payment. In Marvin Engineering Co., ASBCA 28470, 85-3 BCA  18,305, the Armed Services Board of Contract Appeals rejected a similar argument with regard to a claim arising from the Changes clause. The board stated: Respondent errs in its earlier contention that, in order to avoid the bar of final payment, an assertion of a changes claim must meet all the requirements of the Contract Disputes Act (CDA). The language of the Changes clause was extant some thirty years before that Act was enacted.[] A formal claim, special words or formal means of communication have never been considered necessary to constitute a claim saving assertion. There is no hint in the legislative history of the CDA that Congress intended to alter the well established doctrine that a contractor need only manifest his present intention to seek recovery under a claim of right. An assertion of a claim of right sufficient to preserve a Changes clause claim from the bar of final payment is analogous to a reservation from a release. 85-3 BCA at 91,855 (citations omitted). Thus, appellant indicated its present intent to seek recovery under a claim of right when it reserved the claim in the release of claims submitted with its request for the final payment. The fact that the claim had not been perfected by the time final payment was made does not bar the claim. Appellant s Claim Is Not Barred for Lack of Prompt Notice Respondent asserts that RCC s claim is also barred because RCC failed to promptly give the contracting officer notice of the alleged differing site condition. The Differing Site Conditions clause reads, in relevant part: (a) The Contractor shall promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract. Finding 11. The record contains conflicting evidence as to the date that RCC alleges it discovered the differing site condition. In its claim submission, RCC asserts that its personnel did discover the problems with asphalt depths during the July 12, 1993 site work. This statement is contrary to the testimony of RCC s president, who stated that it would not have been possible to discover asphalt depths at this stage of performance. Finding 16. RCC s job logs note an eleven inch depth of asphalt at canopy as of July 27, 1993. Finding 17. RCC notified the contracting officer of the alleged differing site condition by letter dated August 19, 1993. Findings 19, 20. According to RCC s president, this letter was issued immediately upon discovering the alleged differing site condition. Finding 19. While the date of discovery of the alleged differing site condition is not clear, it was apparently before August 19, 1993. Respondent argues that GSA suffered prejudice because lack of prompt notice prevented GSA from verifying the claim." Respondent s Record Submission at 17. This argument has some merit. The purpose of prompt notice, as stated in the clause, is to give the Government the opportunity to ascertain the actual conditions before the conditions are disturbed. Thus, the significant fact is not so much the lapse of time between discovery and notice, but whether the Government had an opportunity to observe the condition and suggest corrective measures. The Government must prove that any alleged failure to give prompt notice resulted in prejudice to the Government. William F. Klingensmith, Inc., GSBCA 3161, 71-2 BCA  9049. The testimony of respondent s COR demonstrates that respondent received written notice prior to the COR s on-site investigation of the allegation of the differing site condition. Findings 23, 24. The COR further testified that when he arrived on site to observe the conditions, his measurements of asphalt depth were consistent with the data in the borings. Finding 25. RCC s president disagrees with the testimony of the COR. He alleges that the COR s measurements confirmed the existence of a differing site condition. However, RCC s president also testified that it would constitute bad business judgment for us to stop work and wait for [the COR]. . . . The areas where the 11" of asphalt were encountered had been disturbed prior to [the COR s] September 15, 1993 site visit. Appellant s record submission clarifies this statement by admitting that these areas had been excavated before the COR s visit to the site. Finding 26. Thus, RCC s president admits that some of the alleged conditions were disturbed before the COR observed them, which would have hindered any observation of these areas, and offers conflicting testimony as to the remainder of the conditions allegedly observed during the COR s site visit. In this instance, it appears that the COR was on site to investigate the removal of most of the existing asphalt, after notice was given, even though appellant admits that some of the alleged differing site conditions were disturbed before the COR s arrival. We have held previously that even in situations where the contractor s actions have prejudiced the Government s ability to investigate, the claim is not necessarily barred. Instead, the burden of persuasion resting on the contractor is increased to the extent necessary to offset the prejudice sustained by the Government. Joseph Penner, GSBCA 4647, 80-2 BCA  14,604. Accordingly, we do not hold that appellant s claim is barred by its disturbing some of the alleged conditions after giving written notice. However, as set forth below, appellant has failed to prove the existence of a differing site condition. Appellant Has Failed To Prove a Differing Site Condition RCC contends that an equitable adjustment to the contract price is required because it encountered subsurface or latent physical conditions at the site which differed materially from those indicated in this contract. RCC has not established the existence of a differing site condition. In order to prove that an equitable adjustment is due according to paragraph (a)(1) of the Differing Site Conditions clause, RCC must establish that the contract contains reasonably plain or positive indications of what conditions would be encountered, and that it encountered different conditions which were reasonably unforeseeable. RCC must also establish that it reasonably relied upon a reasonable interpretation of the terms of the contract, and that it was damaged as a result of a variation between the expected conditions and the encountered conditions. Power Contracting and Engineering Corp., GSBCA 12741, 96-1 BCA  28,125 (1995). We deny RCC s claim because RCC has failed to establish the actual conditions which it encountered. RCC s president alleges by affidavit that he reasonably anticipated the average depth of the existing asphalt to be approximately 4" to 5", but once excavation began, the average depth ranged from 6" to 11", which resulted in a substantially different method of paving operations. Finding 19. This testimony is unclear as to the dates the alleged conditions were encountered, Finding 16, and conflicts with the testimony of respondent s COR as to the depths of asphalt actually encountered. Findings 25, 26. While the original notice letter alleges asphalt in depths of 6" to 11", Finding 20, no contemporaneous measurements of actual depths of asphalt were included in the record of this appeal, even with regard to the alleged instances of depths of 11" of asphalt, which were supposedly disturbed before respondent s COR arrived on site. Findings 26, 36. Also, no records of quantities of asphalt removed were included in the record of this appeal. Finding 36. Thus, even if the expectation of an average depth of 4" to 6" was a reasonable interpretation of the contract documents, and even if RCC relied upon this interpretation, RCC has not met its burden of proving that the actual conditions encountered differed materially from its interpretation. There simply is not sufficient information in the record to substantiate the actual conditions encountered. We have reviewed RCC s documentation in support of quantum to determine whether the information submitted contained evidence of the alleged differing site condition. The increased costs which are sought are supported by copies of checks to subcontractors, estimates of supervisory time, and financial statements used to calculate an overhead rate. There is no indication as to the nature of the work performed by the subcontractors that might support the claim for differing site conditions, or the quantities of asphalt removed. RCC has submitted a total cost claim for the paving portion of the contract, seeking the difference between its bid price and its alleged actual costs. Finding 37. While RCC has alleged excess costs, it has failed to prove that a differing site condition was actually encountered. Decision Respondent s motion to dismiss the appeal is DENIED. The appeal is DENIED. ________________________ ALLAN H. GOODMAN Board Judge We concur: _____________________________ ________________________ MARY ELLEN COSTER WILLIAMS MARTHA H. DeGRAFF Board Judge Board Judge