45 Tr. 637, 667, 677. Our examination of the project diaries and the daily log reveals the use of percentage of rock encountered in isolated instances, e.g., Daily Log of September 9, 1968 and August 6, 1969. All of such percentages are based upon estimates and not actual measurements.

48 App's Exh. 10. However, 3,287 cubic yards of rock allegedly encountered between station 55+72 and 66+77 and 6.314 cubic yards of rock allegedly encountered between station 66+77 and 75+84 have been marked out with a pencil. Mr. Lyshaug testified that this was because of a typing error (Tr. 194). Subtraction of these amounts would reduce the claimed yardage to 53,390.

47 In Roscoe-Ajax Construction Company, Inc. and Knickerbocker Construction Corporation v. United States, 198 Ct. Cl. 133 (1972), it was held to be error, in a case where quantum was not before the Board, to deny a changed condition claim upon the ground the alleged change was not shown to be material without deciding whether a changed condition had, in fact, been encountered. We have no hesitancy in determining that the amount of rock encountered by PHL was material. See United Contractors v. United States, 177 Ct. Cl. 151 (1966).

ernment and PHL records relating to drilling and shooting, appellant's expert witness, Mr. McReary, estimated that drilled and shot rock and ripped rock, not drilled and shot, amounted to 175,000 cubic yards (Tr. 375, 445). Mr. Lyshaug, based on 2,039 total number of drilling hours (App's Exh. 6), powder consumption totaling 153,780 pounds and 15,642 caps expended (App's Exh. 5), estimated that rock drilled and shot on the project exceeded 160,000 yards (Tr. 242, 328-331). He testified that hours spent drilling and shooting were more than twice what he anticipated. He also estimated that because of its bouldery condition they ripped 30,000 yards of rock which had been previously drilled and shot (Tr. 328, 329). Mr. Bilderback estimated total rock excavation at approximately 100,000 cubic yards.48

Based upon swell of from 40 to 60 percent for rock testified to by Mr. McReary, the Government argues that the amount of rock PHL alleges it encountered would extend the width of the embankment from the design width of 32 to 36 feet to 56 to 71 feet and place the fills in the woods throughout 87 percent of

48 Tr. 465, 644, 645. This figure was based on accepting PHL's statement that it anticipated that 41 percent of total excavation would be rock and adding thereto 23,536 yards of rock encountered in the areas where PHL states it did not anticipate rock. Mr. Bilderback's estimate excludes all overburden (Tr. 646-649), while PHL contends that as a practical matter, and in accordance with industry practice, rock with a foot or two of overburden must be treated as all rock (Tr. 53, 199, 200, 280).

the job (Tr. 551, 552; Brief pp. 13, 14). Mr. Bilderback characterized this result as "unthinkable." (Tr. 552.) He asserted that, in fact, material went into the woods in possibly two isolated spots. As we have found, the 40 to 60 percent range for swell given by Mr. McReary was immediately after drilling and blasting and the actual swell would reduce to between 15 and 40 percent when the rock was moved and placed in the fill (note 16, supra). Based on some rough calculations and the fact that the material will subside and compact where traveled by heavy equipment, Mr. Lyshaug testified that the additional material could be accommodated in an additional foot or a foot and three quarters of fill width.49

Although Mr. Bilderback has compiled a mass diagram (Exh. 44; App's Exh. 2) purporting to show precise quantities for excavation, borrow and waste, the completed road was cross-sectioned only in the eastern portion (Tr. 625; 630). Mr. McReary testified that without cross-sectioning the mass diagram was only a matter of judgment or an educated guess at best (Tr. 35, 36, 46-48). He asserted that with rock "What is commonly done is that fills are built wider, and because they are not recross-sectioned, no one really knows what volume is contained in that fill." (Tr. 52.) Mr. Lyshaug indicated that the necessity

49 Tr. 736-740. The Government cites Mr. Bilberback as testifying that the road exceeded design width in only two or three instances. His actual testimony was "Except for those two or three instances, no material went into the woods." (Tr. 553.)

of disposing of boulders resulted in an irregular slope beyond the embankment line (Tr. 262-264). The measurements which would determine whether the road is wider than the design width in the eastern section are not in evidence. Mr. Bilderback testified that there was a six percent difference between staked and final cross-sections in the eastern portion and that since there was less rock in the western and middle portions of the road, he would expect the difference in those sections to be less than six percent (Tr. 547, 596).

As we find infra, the Government's position that the road was not built beyond the design width to any significant degree is contrary to the position taken by Mr. Bilderback while the road was being constructed. Photos of the completed, or nearly completed, road show substantial quantities of material wasted into the trees at stations 52, 73, 84, 103, 142 and 186, middle section and at stations 205 and 210 in the eastern section (pp. 17, 23, 25, 28, 30 and 31, App's Exh. 4). Other photos taken by the Government prior to completion (Appeal Exh. 6 of Exh. A) for the purpose of demonstrating that material was wasted clearly show extra width of the roadway or embankment. Mr. Bilderback acknowledged that the road was wider than the design width between stations 160 and 216, east, because of material that was wasted (Tr. 553). It was also necessary for appellant to excavate fill sections in order to dispose of large

boulders (Tr. 141; photos, p. 9, App's Exh. 4). We find that the road exceeded its design width to an undetermined but significant degree and that the Government has not sustained its contention that it anticipated rock to the extent now claimed.

In addition to the compaction factors as calculated from the plans, PHL relies upon the Government's estimate of one dollar for excavation as compared to the contract price of $1.10 to support its assertion that the Government, in fact, viewed this project in much the same manner as PHL. Government witnesses insisted that the one dollar estimate was reasonable (Tr. 84, 495, 713). We conclude that this contention has merit and is an additional reason for finding that the Government did not anticipate as much rock as it now claims.

DECISION

It is now settled that in considering a category one "changed condition" claim express representations as to the conditions to be encountered are not necessary and that the issue is whether "*** There were such indications which induced reasonable reliance by the successful bidder that subsurface conditions would be more favorable than those encountered." 50 PHL's contention that the contract documents did contain indications that conditions

50 Pacific Alaska Contractors V. United States, 193 Ct. Cl. 850-872 at 864 (1971). See also J. E. Robertson et al. v. United States, 194 Ct. Cl. 289 (1971).

would be more favorable than those encountered has been set forth above and will be repeated here only to the extent necessary to the decision.

In James H. Clack v. United States 51 and Pacific Alaska Contractors, Inc. v. United States, note 50, supra, the Court rejected contentions very similar to those here advanced by PHL. In Clack, the Court held that notes on the contract plans, seemingly indistinguishable in effect from the note on the plans herein (note 42, supra), together with the fact the project cross-sections were not staked at the time of bidding, also a fact here, should have placed plaintiff on notice that there would be some change in excavation and embankment quantities. The Court rejected plaintiff's contention that each balance area was to be considered separate from other balances and denied the claim for a constructive change based upon the contention plaintiff had to excavate more material and haul it greater distances than contemplated.

In Pacific Alaska Contractors, Inc., supra, the Court characterized the intent of the Government agents that the project would be a balanced one as merely "hopes, expectations, guesses, or suggestions" and held that plaintiff was not warranted in drawing any conclusions from the rough estimates on the plans as to the balanced nature of the job and the underlying physical conditions. The Court emphasized the frequent

51 184 Ct. Cl. 40 (1968).

reminders that estimated quantities were to be viewed with great caution and said that the contract documents were substantially silent in this respect, which fact should have been recognized by the plaintiff.

The rationale of the above decisions would, at first blush, seem to be dispositive of the instant claim. However, in Morrison-Knudsen Company, Inc. v. United States,52 the Court held, inter alia, that contract drawings showing for various segments of the roadway "(1) excavation in cubic yards; (2) borrow in cubic yards; (3) embankment in cubic yards; (4) overhaul in station yards; (5) borrow overhaul in cubic-yard miles; (6) the specific borrow pit locations, *** and (7) the quantities of unsuitable excavation material that were to be wasted" was information essential to the preparation and submission of a bid. The evidence showed that 65 percent of the designated borrow pits failed to produce suitable material as compared to a ten percent failure rate which might normally be expected. The Court held that plaintiff was justified in relying on the relative accuracy of the borrow pit locations and other data shown on the drawings, rejected a contention that a contract provision to the effect that the Government assumed no responsibility for the quantity of acceptable material at designated locations placed the entire risk of the suitability of the borrow sources on the contractor and ruled that actions of the Government in desig

52 184 Ct. Cl. 661 (1968).

nating substitute borrow sources and ordering plaintiff to perform borrow excavation and overhaul far in excess of quantities shown on the contract drawings constituted compensable changes, overturning a decision of this Board 53 to the effect that compensation in excess of contract prices was precluded unless the overrun was in excess of 25 percent.

Morrison-Knudsen, supra, was decided subsequent to Clack (note 51, supra), but Clack was not referred to therein. In Pacific Alaska Contractors, Inc. (note 50, supra), Morrison-Knudsen was distinguished upon the ground that "*** there were very material differences in the usefulness of the borrow pits as compared to the indications in the contract documents ***." 193 Ct. Cl. at 864. We conclude, however, that the Court's broad statements negating the contractor's right to rely on the accuracy of bid information must be viewed with caution and that the controlling finding in Clack was that the construction balance points did not differ to any great extent from the plan balances. Similarly, in Pacific Alaska Contractors, Inc., the controlling finding was that the differences with respect to borrow pits between the contract indications and actual conditions encountered were not substantial or significant.

The record in this case reflects

63 Morrison-Knudsen Company, Inc., IBCA 36 and IBCA 50, 64 I.D. 185 (1957), 57-1 BCA par. 1264, affirmed on reconsideration, 66 I.D. 71 (1959), 59-1 BCA par. 2110.

that the contractor should have been able to rely upon the fact that the excavation and embankment quantities shown within the balance points on the plans would be a rough approximation of the quantities encountered in actual construction and that the differences between these quantities, called "compaction factors," were based on materials expected to be encountered. Indeed, as in MorrisonKnudsen, supra, we do not believe an intelligent bid could have been submitted on this solicitation without balance point information.

quired that the top four inches of roadway be completed with material which would pass a three inch screen. While the size of material permitted immediately below the top four inches is not clear, we note that the top 12 inches of subgrade were required to be rolled. It also provided

that coarse rock and boulders were to be used in the formation of embankments and that where feasible such material was to be placed in lower sections thereby conserving the more suitable material for the top portions of the subgrade. The contractor clearly had an obligation to conserve material deemed suitable by the engineer for finishing or placing in the roadbed.

The record indicates that PHL representatives were told by the project inspector on several occasions that "finishing dirt" was being placed on the bottom of the fills and was not being saved (Project Diary of July 12, 15 and 18, 1968). On one such occasion, the project inspector was informed that PHL personnel were saving finishing material but they had been stopped by Mr. Lyshaug. There is no evidence of the amount of materials involved in these requests.

54

Mr. Propes inquired of Mr. Bilderback where they were going to obtain 3,500 yards of material necessary to finish the fill from 261+00

54 Project Diary of July 18, 1968. Mr. Lyshang testified that he did so because they were removing a shallow layer of basically organic material from uneven rock and that operating under such conditions tore the equipment apart (Tr. 257, 258). He asserted that organic material was not suitable for finishing.