____________________________ DENIED: May 14, 1997 ____________________________ GSBCA 13576-IBWC VEGA ROOFING CO., Appellant, v. INTERNATIONAL BOUNDARY AND WATER COMMISSION, Respondent. Juan Vega, Owner of Vega Roofing Co., McAllen, TX, appearing for Appellant. Randall A. McMains, International Boundary and Water Commission, El Paso, TX, counsel for Respondent. Before Board Judges WILLIAMS, DeGRAFF, and GOODMAN. WILLIAMS, Board Judge. Appellant, Vega Roofing Co. (Vega), seeks $5,333 for additional roof removal work it alleges it performed under a roof replacement contract with the International Boundary and Water Commission (IBWC). Specifically, appellant claims that it was required to remove two layers of roof shingles from the twenty-four roofs it replaced when the contract specifications and drawings only indicated one layer of shingles on the old roofs. Appellant also claims that the additional layer of shingles was not reasonably ascertainable from a site inspection. Respondent contends that the specifications and drawings did not indicate there was only one layer of shingles to be removed, and that the two layers of shingles were clearly visible during the site inspection. The parties elected to submit the case on the record without a hearing pursuant to Rule 111. The record consists of the pleadings, the appeal file, the affidavits of respondent's on-site assistant project manager and civil engineer, photographs of certain housing units submitted by appellant, and the parties' correspondence with the Board. Appellant has failed to demonstrate that the additional layer of shingles differed materially from the conditions indicated in the contract or from those ordinarily encountered in roof replacement contracts. Further, the weight of the evidence indicates that the additional layer of shingles was apparent during the site inspection. We, thus, deny this appeal. Findings of Fact On January 24, 1995, IBWC issued solicitation number IFB 95-05 seeking sealed bids for the replacement of roofs on twenty-four government-owned residences in Falcon Heights, Texas. The solicitation included Federal Acquisition Regulation (FAR) clause 52.236-3, Site Investigation and Conditions Affecting the Work (Apr. 1984). This clause provided in pertinent part: (a) The Contractor acknowledges that it has taken steps reasonably necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost, including but not limited to (1) conditions bearing upon transportation, disposal, handling, and storage of materials; . . . (3) uncertainties of weather, river stages, tides, or similar physical conditions at the site; . . . and (5) the character of equipment and facilities needed preliminary to and during work performance. The Contractor also acknowledges that it has satisfied itself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by the Government, as well as from the drawings and specifications made a part of this contract. Any failure of the Contractor to take the actions described and acknowledged in this paragraph will not relieve the Contractor from responsibility for estimating properly the difficulty and cost of successfully performing the work, or for proceeding to successfully perform the work without additional expense to the Government. (b) The Government assumes no responsibility for any conclusions or interpretations made by the Contractor based on the information made available by the Government. Nor does the Government assume responsibility for any understanding reached or representation made concerning conditions which can affect the work by any of its officers or agents before the execution of this contract, unless that understanding or representation is expressly stated in this contract. Appeal File, Exhibit 2 at H-3, I-2. The specifications describing the roof removal process stated: Section 02070, Selective Demolition 1.02 Summary A. Existing asphalt shingle roofs shall be removed down to the wooden sheathing including felt. All sheathing, [fascia], and flashing shall be left in place with the exception of decayed sheathing, [fascia], and flashing which shall be replaced as directed by the Government. See Drawing No. 15257 for estimated quantities of decayed roofing to be replaced. Appeal File, Exhibit 2 at 02070-1, 02070-2. No section of the specifications addressed the exact number of layers of existing roofing to be removed. Appeal File, Exhibit 2. Drawing No. 15257, which accompanied the solicitation, and was entitled "Falcon Village Residence Location Plan," showed the location and dimensions of all residences and buildings for which new roofs were required. This drawing contained the following note: "Estimated quantities of decayed roofing to be replaced: 200 square feet of sheathing, 6 ventilation flashings, 200 linear feet of eave [fascia] and 200 linear feet of sheet metal edge." Appeal File, Exhibit 2 at Drawing No. 15257. Neither this drawing nor any other drawing for this job in the record indicated how many layers of existing roof shingles were to be removed. Appeal File, Exhibit 2. On March 2, 1995, the agency issued an amendment to the solicitation responding to written questions submitted by prospective bidders. The pertinent questions and answers stated: Question - Regarding estimated quantities of decayed roofing to be replaced on first page of drawings, please verify each building? Answer - The exact quantity of the decaying roof per building is not known. Verification may be done after existing roofing is removed. Question - Do estimated quantities apply to the 24 units only? Answer - Yes, for the 24 units identified in Drawing 15257. Appeal File, Exhibit 2. Seven bids were received. Bids ranged from a low of $54,941 (which did not receive award) to a high of $94,980. Appeal File, Exhibit 3. Appellant's bid of $59,401 was second lowest, and the next low bid was $65,000. Id. Appellant included with its offer a Certificate of Site Inspection certifying that it had conducted a site inspection as required in the instructions to offerors. Appeal File, Exhibit 2 at D-1. Respondent's contracting officer's authorized field representative, who was also the assistant project manager, was present at the site when the contractor inspected the roofs, and also inspected the roofs. Id., Exhibit 5. The assistant project manager observed that there were two layers of shingles on the old roofs. Id. According to the assistant project manager, "it was very apparent." Id. On June 5, 1995, the IBWC awarded this roof replacement contract, number IBM 95-32, to Vega in the amount of $59,401. Appeal File, Exhibit 2 at C-1. The contract included the terms of the solicitation referenced above. Appeal File, Exhibit 2. By letter dated November 21, 1995, appellant notified respondent that the removal phase of the roofing job revealed that there were two layers of shingles to be removed. Appeal File, Exhibit 4. Appellant alleged that its bid documents and bid proposal were premised on the removal of only one layer, and requested an equitable adjustment in the amount of $5,333 for the difference in cost of removing the extra layer of roof. Id. The assistant project manager at Falcon Village reviewed appellant's request, and on November 22, 1995, recommended denial of the request on two grounds: (1) the contract specifications said nothing about removing only one roof; and (2) the two layers of shingles were apparent to him during appellant's site visit. Appeal File, Exhibit 5. On January 24, 1996, the contracting officer denied appellant's request for an equitable adjustment. Appeal File, Exhibit 6 at 1-2. In a letter dated January 30, 1996, appellant requested that the contracting officer reconsider her decision. Appeal File, Exhibit 7. The agency's assistant project manager again reviewed appellant's request for a change order and recommended denial, stating: although the drawings do not indicate the existence of two roofs, the specifications take precedence. The specifications require the contractor to remove the existing roofs down to the wooden sheathing including felt; and a proper inspection by the contractor would have revealed the existence of two roofs. Appeal File, Exhibit 8. A civil engineer at IBWC also reviewed appellant's request and recommended denial in a memorandum dated February 14, 1996, based on his opinion that the two layers of shingles would be noticeable when the houses were viewed from the side. Id. Exhibit 9; Affidavit of Cesar Boisselier (Sept. 11, 1996). The contracting officer denied appellant's request for an equitable adjustment in her final decision dated March 1, 1996. Appeal File, Exhibit 10. Appellant, in a letter dated March 11, 1996, again challenged the contracting officer's decision. Appeal File, Exhibit 11. Appellant furnished the contracting officer with photocopies of photographs of different houses in this development which allegedly supported its claim. Id. The contracting officer notified appellant in a letter dated March 21, 1996, that her decision remained unchanged because the houses depicted in the photographs were not those at issue here and were, therefore, irrelevant. Appeal File, Exhibit 13. On April 3, 1996, Vega filed the instant appeal. In its record submission in support of its claim, appellant stated: In [the contracting officer's] letter of March 1, 1996, she stated that it was obvious upon inspection to see four layers of shingles at the bottom edge of the roof. I went to the trouble of taking pictures of the edge detail to show that this was not the case in most of the buildings. In all honesty, I can not say that it was not the case in the some of the buildings. I simply don't recall seeing this detail, otherwise we would have figured for the removal of two roofs. My foreman did not know that there were two roofs to remove until the actual removal began. . . . To the best of my recollection, I simply do not believe that there were four layers of shingles showing at the edge detail. Letter from Juan Vega to the Board dated July 18, 1996, at 1. On August 7, 1996, appellant submitted a statement from Vega employee Juan Aquila which stated: We could not tell that there was more than one roof at the time of removal. After we started removing the top layer of shingle, we found that there was another shingle roof under that one. This finding was reported to Mr. Vega after the first building was started. Statement of Juan Aguila to the Board dated August 7, 1996. Discussion Appellant has failed to demonstrate that its removal of two layers of shingles on the existing roofs entitles it to additional compensation. The contract clearly required appellant to remove all of the old shingles down to the wooden sheathing. Further, the contract included express requirements for a pre-bid inspection, and appellant certified that it did inspect the roofs. Although appellant's owner does not recall observing two layers of roofs during his pre-bid inspection, his observation does not comport with the weight of the evidence. In contrast to appellant's owner's somewhat equivocal statement that "I simply don't recall seeing this detail," respondent has provided two sworn affidavits, one from a civil engineer and one from the assistant project manager, which demonstrate that two layers of shingles were visible during the site inspection. The engineer testified that "these two layers of shingles are noticeable by viewing the roof from the side of the house." Further, the assistant project manager, in a November 15, 1995, memorandum to the project manager and contracting officer, stated: "I was at the site when the contractor inspected the roofs and was aware of there being two layers of shingles, it was very apparent." Moreover, FAR 52.236-3 expressly states that appellant was responsible for ascertaining the "character, quality, and quantity of surface and subsurface materials or obstacles to be encountered . . . ." This clause, which was included in the contract, further stated that the Government assumed "no responsibility for any conclusions or interpretations made by the contractor . . . ." Thus, based upon the weight of the evidence and the clear language of the contract, appellant is not entitled to recover. Nor has appellant demonstrated that it is entitled to relief based on the theory that it encountered a differing site condition. The differing site condition clause incorporated into this contract establishes two categories of compensable conditions: Category I (site conditions which differ materially from those indicated in the contract) and Category II (conditions which are unknown and unusual and differ materially from those generally encountered in the type of work being procured). TLC Engineering and Construction v. General Services Administration, GSBCA 11507, 95-1 BCA  27,356, at 136,322. To prevail on a claim for a Type I condition, "the contractor must prove, by a preponderance of the evidence, 'that the conditions indicated in the contract differ materially from those it encounters during performance.'" Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1581 (Fed. Cir. 1987) (citing P.J. Maffei Building Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984)). "The Government is not liable for a Type I differing site conditions claim unless the contract documents contain an affirmative representation of the subsurface site conditions. Where there is no such contract indication, an equitable adjustment under the 'differing site conditions' clause is not available." 95-1 BCA at 136,322 (quoting Shumate Constructors, Inc., VABCA 2772, 90-3 BCA  22,946, at 115,193 (citations omitted)). Furthermore, the contractor must establish "that it could not have anticipated these conditions from a study of contract drawings and/or a reasonable examination of the site . . . ." One Way Construction, Inc. v. Forest Service, AGBCA 93-193-1, 94-3 BCA  27,275, at 135,889. In the instant case, neither the specifications nor the drawings represented the number of layers of shingles to be removed. In order to establish a Category II condition, appellant must demonstrate that the existence of two layers of roof shingles was unknown and unusual and that this circumstance differed materially from that ordinarily encountered and generally recognized as inhering in a roof replacement contract. Imbus Roofing Co., GSBCA 10430, 91-2 BCA  23,820, at 119,348. In establishing a Category II condition, appellant "'is confronted with a relatively heavy burden of proof' in that it must demonstrate that it has encountered something materially different from the known and the usual." Quality Services of N.C., Inc., ASBCA 34851, 89-2 BCA  21,836, at 109,862 (citations omitted). Appellant has failed to prove that the two layers of shingles were materially different from usual existing roofing conditions. Moreover, to establish either a Category I or II condition, appellant must also prove "that the condition could not have been reasonably anticipated or discovered prior to its bid." Quality Services, 89-2 BCA at 109,862 (citations omitted). Appellant is bound by what it could discover during a reasonable site inspection. Aguirre Associates, AGBCA 78-129, 80-2 BCA  14,648, at 72,264. Here, the weight of the evidence supports a conclusion that the two layers of shingles could have been ascertained during the site inspection. Thus, appellant has failed to demonstrate a differing site condition. Decision Accordingly, the appeal is DENIED. ______________________________ MARY ELLEN COSTER WILLIAMS Board Judge We concur: ____________________________ ____________________________ MARTHA H. DeGRAFF ALLAN H. GOODMAN Board Judge Board Judge