Tetra Tech Facilities Construction, LLC
ASBCA No. 58568, 58845
| A.S.B.C.A. | Nov 15, 2016Background
- Tetra Tech was awarded a design-build contract to expand and renovate an Army Aviation Support Facility at Aberdeen Proving Ground; the contract incorporated FAR 52.236-2 (Differing Site Conditions).
- The solicitation included a government geotechnical report (Giles) showing generally medium-to-stiff soils and estimating the water table 7–11 ft below grade; bidders were limited to noninvasive site visits and Tetra Tech was required to perform its own subsurface investigation after award.
- After award, Tetra Tech’s consultant (Haley & Aldrich) recommended deep foundations for the hangar, leading to Mod 3, which funded pile work; construction NTP issued and excavation began Dec. 2010.
- During excavation Tetra Tech encountered isolated areas of saturated, unstable (“soupy”) soils south of Column Line 9 and elsewhere; investigations revealed leaking site infrastructure (a longstanding leaking water valve, a leaking fire hydrant, and perforated storm drains) that were not disclosed in solicitation documents.
- Tetra Tech remediated areas (undercut/backfill, soil cement, temporary access, geotech consulting), submitted an REA/claim for ~$1.2M for differing site conditions; the CO denied the claim (relying in part on Mod 3 and Haley & Aldrich), and Tetra Tech appealed to ASBCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether encountered subsurface conditions constituted a Type I differing site condition (FAR 52.236-2(a)(1)) | Tetra Tech: actual saturated, unstable soils materially differed from conditions indicated in the contract (Giles), were not reasonably foreseeable, Tetra Tech gave timely notice and was damaged | Gov't: Giles and Haley & Aldrich data put Tetra Tech on notice of high moisture/near-saturation; adverse weather and proximity to Chesapeake Bay made conditions foreseeable; Mod 3 (deep foundation) covered differing conditions | Held: Yes. Board found Giles indicated medium–stiff constructible soils; saturated areas were caused primarily by undisclosed leaking infrastructure and were not reasonably foreseeable; Type I DSC established. |
| Whether contractor reasonably relied on contract representations and satisfied notice obligations | Tetra Tech: relied reasonably on Giles report and timely notified COs and provided data; performed required post-award geotechnical work | Gov't: Tetra Tech should have anticipated issues from available boring data and implemented site‑wide dewatering/preventive measures; CO argued late notice and failure to dewater | Held: Tetra Tech reasonably relied on contract indications; notice was timely; government’s contentions rejected. |
| Whether Mod 3 or Haley & Aldrich report precluded recovery for excavation‑level remediation | Tetra Tech: Mod 3 addressed foundation type only (deep piles), not surface/subgrade saturated soils remediation costs | Gov't: Mod 3 (based on Haley & Aldrich) covered site conditions and therefore foreclosed additional compensation | Held: Mod 3 related to deep foundation settlement issues at depth and did not encompass the shallow saturated subgrade remediation; does not bar the REA. |
| Causation and foreseeability of saturated soils (natural water table or weather vs. leaking infrastructure) | Tetra Tech: saturated soils were caused principally by undisclosed, continuous leaks (valve, hydrant, perforated drains), not by high natural water table or weather | Gov't: saturated conditions were foreseeable from boring moisture readings, Haley & Aldrich data, or winter weather; any leaks were insignificant | Held: Board found preponderance of evidence that undisclosed leaking infrastructure primarily caused the unsuitable soils; natural water table and weather were not the main causes and conditions were not reasonably foreseeable. |
Key Cases Cited
- Stuyvesant Dredging Co. v. United States, 834 F.2d 1576 (Fed. Cir. 1987) (elements and standards for differing site conditions claims)
- Comtrol, Inc. v. United States, 294 F.3d 1357 (Fed. Cir. 2002) (contractor’s reliance and differing site conditions precedent)
- H.B. Mac, Inc. v. United States, 153 F.3d 1338 (Fed. Cir. 1998) (reasonableness of contractor reliance on site representations)
- Metcalf Constr. Co. v. United States, 742 F.3d 984 (Fed. Cir. 2014) (pre-contract representations remain actionable despite post-award investigation requirements)
- Arundel Corp. v. United States, 515 F.2d 1116 (Ct. Cl. 1975) (finder-of-fact standard on what conditions were actually encountered)