Tidewater, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )
)
Tidewater, Inc. ) ASBCA No. 61076
)
Under Contract No. W9126G-09-D-Ol l l )

APPEARANCES FOR THE APPELLANT: Elizabeth Haws Connally, Esq.
Connally Law, PLLC
San Antonio, TX

William W. Sommers, Esq.
Langley & Banack, Inc.
San Antonio, TX

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
S. DeAnn Lehigh, Esq.
Michael T. Geiselhart, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Little Rock

OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON
THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT

The United States Army Corps of Engineers (the Corps) has moved for summary
judgment in this appeal, in which appellant Tidewater, Inc. (Tidewater) asserts that it
encountered a Type I differing site condition. In particular, Tidewater alleges that soil
conditions when it sought to install piers, and to obtain fill, for a building addition
differed materially from those indicated in contract documents due to excessive rainfall,
forcing it to change its construction method and incur additional performance time. The
Corps argues that Tidewater has failed to allege essential elements of a Type I differing
site condition, including the element of identification of the contract indications that
form the basis of its claim. We grant the motion and deny the appeal.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

1. By date of September 30, 2009, the Corps awarded Tidewater Contract
No. W9126G-09-D-Ol l l (the base contract), a multiple award, indefinite-delivery,
indefinite-quantity, task order contract under which awardees were to provide all labor and
equipment for repairs, alterations, construction and design-build of healthcare facilities for
the U.S. Air Force Medical Services, U.S. Army Medical Command and other Corps of
Engineers' customers with healthcare needs (R4, tab 4 at 2-3 of 37).

2. The contract contained various standard clauses, including Federal Acquisition
Regulation (FAR) 52.236-2, DIFFERING SITE CONDITIONS (APR 1984 ); FAR 52.236-3, SITE
INVESTIGATION AND CONDITIONS AFFECTING THE WORK (APR 1984); and FAR 52.243-4,
CHANGES (JUN 2007) (R4, tab 4 at 13 of 27).

3. By date of July 27, 2012, the Corps issued Request for Proposal (RFP)
No. W9126G-12-U-1016-0001 to Tidewater and other awardees, seeking proposals
relating to a task order for the Barksdale Dental Clinic Project, to "create a complete
and usable facility" ( app. supp. R4, tab 1 at l ). The RFP included Attachment G, "Site
Surveys, Geotechnical Reports & Fill Material," which states in part: "The Contractor
shall be responsible for providing all site surveys, geotechnical data, and fill material
required for constntction and or utility installation. This includes obtaining all
necessary permits and soil testing. Any existing surveys provided are for information
only (FIO)." (Id at 51) In section 2.5, "Regional Setting,'' the RFP described the soils
as composed of alluvial deposits of clay, silt and sand with varying bearing capacity.
Section 2.5 also provided that "water table elevation is often high." (Id at 768)

4. It is undisputed that Tidewater participated in site visits on July 23, 2012,
and August 10, 2012 ( compl. and answer ,r 13 ).

5. By date of August 16, 2012, the Corps issued Amendment No. 0003 to the
RFP, requesting contractors to respond with proposals to "create a complete and
usable facility" for the dental unit that would occupy the designated space ( app. supp.
R4, tab 1 at 1307). The Corps stated that "[t]he magnitude of this requirement is
estimated over $5,000,000.00" (id.).

6. The amendment included Design Compatibility Guidelines promulgated by
the Air Force for work performed at Barksdale Air Force Base. The guidelines added
that a ·'geotechnical report including ... design recommendations by a qualified
geotechnical engineer is required." (App. supp. R4, tab 1 at 768) The guidelines also
advised contractors that "[r]ainfall averages 46.6 inches annually, with the greatest
monthly rainfall occurring in spring" (id. at 769).

7. Effective September 30, 2012, the Corps awarded Tidewater Task Order
No. 0002, which gave rise to the present dispute. Under Task Order No. 0002,
Tidewater was to renovate Building 4666 at Barksdale Air Force Base, Louisiana, over a
performance period of 730 calendar days. (R4, tab 5 at 141-42, 146-47)

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 8. By date of December 20, 2012, the contracting officer issued Modification
No. 02 to exercise Option 3 under the task order contract for the construction of an
addition to Building 4666 (R4, tab 6 at 1-2).

9. By date of February 25, 2013, Professional Service Industries, Inc. (PSI),
Tidewater's geotechnical engineering consultant, furnished its report to Tidewater,
which the parties have referred to as the Geo Report. While Tidewater alleges that it
''became a contract-related document" (comp I. 1 44 ), we find that the Geo Report was
not a contract document, but was commissioned by Tidewater consistent with
Attachment G of the RFP (see statement 3 ). We further find that the report was
addressed to Tidewater and the record contains no evidence that the Corps endorsed
the report's contents. In pertinent part, PSI stated in the Geo Report that

Groundwater was observed at 19 feet in boring B-1 on
completion of the borings [in February 2013].
Groundwater may be present at different depths during
other times of the year depending upon drainage pattern
alterations, climatic and rainfall conditions. PSI
recommends the contractor determine the current
groundwater depth at the time of construction.

(R4, tab 3C at 21, 30) PSI also stated that "groundwater levels may require
dewatering operations be performed to allow drilled shaft construction or the shafts
may have to be installed by slurry drilling methods" (id at 23). PSI further
recommended that Tidewater's contractor "determine the actual groundwater levels at
the site at the time of construction to assess the impact groundwater may have on
construction" (id. at 25).

10. By letter to Tidewater dated May 9, 2013, the Corps suspended work because
''insufficient project funds [were] immediately available" (R4, tab 10 at 392-93).
Approximately seven months later, by letter to Tidewater dated December 11, 2013, the
administrative contracting officer stated that, "[e]ffective with the signing of
Modification No. 06 by the Contracting Officer, the directed suspension of work was
lifted and work shall again proceed" (id. at 394).

11. It is undisputed that, as approved by the Corps, Tidewater's final design for
the construction of the addition to Building 4666 included use of straight shaft concrete
piers for the foundation (compl. and answer 120).

12. By letter to the administrative contracting officer dated June 17, 2015,
Tidewater gave notice of a differing site condition, which it described as follows:

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 During the pier drilling activity conducted on June 9, 2015
it was discovered that the water table has risen drastically
since our initial investigation which was conducted in
2013. This initial investigation encountered groundwater
approximately 20 feet below the surface. Currently, the
groundwater level is at approximately 9 feet below the
surface.

(R4, tab 3i at 90)

13. By letter to Tidewater dated July 7, 2015, the administrative contracting
officer responded, disagreeing that Tidewater had encountered a differing site condition.
The administrative contracting officer cited from the Geo Report (see statement 9) and
concluded that "encountering groundwater was a known potential condition'' that
Tidewater's pier drilling contractor should have anticipated, and blamed Tidewater both
for failing to ascertain water table levels before commencing pier drilling operations, and
for failing to take other recommended measures. (R4, tab 3k) Thereafter, by letter to the
administrative contracting officer dated July 20, 2015, Tidewater advised:

On July 15, 2015, PSI conducted a test well to verify the
current conditions of the water levels at the site. During
the drilling of the test shaft, water was encountered at
approximately 7 to 9 feet below the surface; when
measured it was at 7'-6." Based on these latest findings,
Tidewater recommends that the helical method be used in
place of the drilled concrete piers.

(R4, tab 3j at 92) Tidewater stated that its structural engineer had been on site and had
witnessed the problems and determined that "piers will need to be installed utilizing
the slurry method if we are to continue with the install, or we must wait for [the]
groundwater [to] diminish to a manageable level" (R4, tab 3i at 90). Thereafter,
Tidewater changed its contemplated method for pier installation and was ultimately
able to complete pier installation using helical piers (R4, tab 10 at 273).

14. By date of July 26, 2016, Tidewater submitted a certified claim to the
contracting officer for $726,669.27, together with 215 additional calendar days of delay,
for a Type I differing site condition and weather delays allegedly encountered on the
project (R4, tab 10). Tidewater asserted that the differing site condition "caused [it] to
change the design for the pier installation and required additional time to perform the
work" (id at 1).

15. As a separate part of its claim, Tidewater asserts that it was delayed 40
calendar days because it was ~able to obtain the select fill that it needed due to wet

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conditions at the supplier's pit, resulting in higher moisture content than anticipated
(R4, tab 10 at 276-80).

16. By final decision dated December 14, 2016, the contracting officer denied
Tidewater's claim in its entirety (R4, tab 3 at 7-8). By notice of appeal dated February 27,
2017, Tidewater filed this timely appeal.

17. Tidewater filed its original complaint in April 2017 and an amended
original complaint in July 2017. We find that, in both pleadings, Tidewater does not
allege that the Corps made specific representations in the contract documents
regarding subsurface soil conditions. We further find that, in both pleadings,
Tidewater alleges that, with respect to groundwater, the contract documents contain
only the representation in section 2.5 of the RFP (see statement 3).

18. In its original complaint, Tidewater alleged that, when it was ready to
construct Building 4666 in the spring of 2015, the weather:

[W]as the fifth wettest month on record for the Shreveport
and Bossier City, LA area, with 10.97 inches of rainfall,
which caused the Red River to rise 30-[feet] above flood
stage for the first time since 1990. This was not merely a
"recent rain" event, but was an event that affected the
subsurface soils and high water table in the Shreveport and
Bossier City, LA area. The subsurface soil at the time of
construction was further saturated by the fact that the Red
River at Shreveport rose to its highest level in 70 years,
peaking on June 9, 2015 at 37.14 feet, which is 7.14 feet
above flood stage. The subsurface physical conditions of
the soils were significantly saturated and materially
different from what Tidewater reasonably anticipated when
it bid on the ;project in August 2012 and from the
information contained in the Contract and contract-related
documents, which included the Geo Report [see
statement 9]. These conditions also affected Tidewater's
ability to obtain acceptable fill for the Project.

(Compl. ,r 21) (Citations omitted) In its answer, the Corps denied these allegations
(answer ,r 21 ). Tidewater subsequently filed an amended original complaint, repeating
verbatim the allegations of paragraph 21 of the original complaint.

19. As exhibit 1 to its motion, the Corps has presented climate data reflecting
that the average annual precipitation for rainfall between 1981 and 2010 in the

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Shreveport, Louisiana, area was 51.36 inches (Respondent's Motion for Summary
Judgment and Brief in Support (gov't mot.), ex. 1 at 2).

DECISION

In moving for summary judgment, the Corps advances three broad arguments.
First, the Corps contends that Tidewater has failed to allege facts necessary to establish
each of the elements of a Type I differing site conditions claim. Second, the Corps
urges that Tidewater impermissibly relies upon an increase in the water table due to
rain occurring after contract formation. Third, the Corps argues that Tidewater has not
complied with the Site Investigation clause (see statement 2) because it neither made
site surveys nor performed soils testing. (Gov' t mot. at 7)

For its part, Tidewater chiefly argues that triable issues preclude summary
judgment. Tidewater asserts that, when it began performance in 2015, it encountered
"unforeseeable and unexpected high groundwater levels" that were "materially different
from those represented in the Contract documents" (Appellant's Response in Opposition
to Respondent's Motion for Summary Judgment (app. opp'n)). While acknowledging the
general rule that the Differing Site Conditions clause does not shift the risk of severe
weather, Tidewater asserts that "when severe weather makes the specified performanee
impossible, a changed condition does exist, and the Government has been held
responsible" (app. opp'n at 9-10).

We evaluate the parties' contentions by familiar standards. Summary judgment is
properly granted only where there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. E.g., Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1390 (Fed. Cir. 1987). "Our task is not to resolve factual disputes, but to
ascertain whether material disputes of fact - triable issues - are present." Conner Bros.
Constn,ction Co., ASBCA No. 54109, 04-2 BCA ,r 32,784 at 162,143, aff'd, Conner Bros.
Construction Co. v. Geren, 550 F.3d 1368 (Fed. Cir. 2008) (quoting John C. Grimberg Co.,
ASBCA No. 51693, 99-2 BCA ,r 30,572 at 150,969). In deciding a summary judgment
motion, we resolve all reasonable inferences in favor of the non-moving party, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), which in this case is Tidewater.

Tidewater alleges that it encountered a Type I differing site condition. A Type I
condition consists of "subsurface or latent physical conditions at the site which differ
materially from those indicated in this contract.'' FAR 52.236-2(a)(l). In Comtrol, Inc.
v. United States, 294 F.3d 1357, 1362 (Fed. Cir. 2002), the Federal Circuit defined the
components of a Type I differing site condition as follows:

To establish entitlement to an equitable adjustment due to a
Type I differing site condition, a contractor must prove, by
preponderant evidence, that: the conditions indicated in the

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 contract differ materially from those actually encountered
during performance; the conditions actually encountered
were reasonably unforeseeable based on all information
available to the contractor at the time of bidding; the
contractor reasonably relied upon its interpretation of the
contract and contract-related documents; and the contractor
was damaged as a result of the material variation between
expected and encountered conditions.

After careful consideration of the motion papers, we conclude that the motion
must be granted. We reach this conclusion for three principle reasons.

First, Tidewater appears to seek recovery under the Differing Site Conditions
clause for weather conditions. Thus, Tidewater alleges in its original complaint that,
when it was ready to construct the addition to Building 4666 in the spring of 2015, it
encountered "the fifth wettest month on record for the ... area, with 10.97 inches of
rainfall, which caused the Red River to rise 30-[feet] above flood stage .... This was
not merely a 'recent rain' event, but was an event that affected the subsurface soils and
high water table in the ... area." (Statement 18) Tidewater alleges that the soils were
"significantly saturated" and "materially different" in 2015 from what it anticipated
when it bid the project in August 2012, and that the rain affected its ability to ''obtain
acceptable fill" for the project (id.).

Resolving all inferences regarding these allegations in Tidewater's favor on
summary judgment, Liberty Lobby, 477 U.S. at 255, we do not regard them as
dispositive. We adhere to the rule that:

Generally, the government, under the standard
Differing Site Conditions [clause], does not assume an
obligation to compensate a contractor for additional costs
or losses it incurs resulting solely from weather conditions,
which neither party expected or could anticipate and not
from any act or fault of the government. Weather
conditions generally are considered to be acts of God.

Turnkey Enterprises, Inc. v. United States, 597 F.2d 750, 754 (Ct. Cl. 1979). Our own
cases apply this principle. E.g., Commercial Contractors Equipment, Inc., ASBCA
No. 52930 et al., 03-2 BCA ,r 32,381 at 160,255 (citing Turnkey, 597 F.2d at 759) (holding
that "weather occurring during contract performance, no matter how severe, and other acts
of God alone do not fall within the provisions of the Differing Site Conditions ... clause");
Praxis-Assurance Venture, ASBCA No. 24748, 81-1 BCA ,r 15,028 at 74,356 (same);
Reinhold Constntction, Inc., ASBCA No. 23770, 79-2 BCA ,r 14,123 at 69,482 (same).

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 In its brief, Tidewater acknowledges the general rule that the risk of severe weather
"is not shifted to the Government via the [Differing Site Conditions] clause," but it
nonetheless argues that "when severe weather makes the specified performance
impossible, a changed condition does exist, and the Government has been held
responsible'' (app. opp'n at 9-10). Tidewater relies upon two cases - Baldi Bros.
Constntctors v. United States, 50 Fed. Cl. 74 (2001); and D.H. Dave and Gerben
Contracting Co., ASBCA No. 6257, 1962 BCA 13493-which we regard as inapposite.

Both cases involved significant omissions from contract documents that have
no parallel in the record here. In D.H. Dave, we acknowledged that "excessive rainfall
is not in and of itself a [differing site condition] for which price and time adjustments
are to be made." D.H Dave, 1962 BCA 13493 at 17,837. We nonetheless awarded
an equitable adjustment on a record showing that contract drawings that "omitted
information on water and [the] offensive odor of the soil [that the contractor argued]
would have disclosed the job to be a 'water job' and that if disclosed" would have
caused the contractor to increase its bid substantially. Id at 17,827. Despite the
information omitted from the contract documents, the specification required the
contractor to achieve 95 percent compaction of the original soil and fill. As a result of
heavy rainfall, "the subsurface of the site became saturated due to [an] inadequate
drainage area and compaction [to 95 percent] became impossible." Id. at 17,837. We
concluded that the information omitted from the drawings, "whe.n. coupled with the
compaction requirements in the specifications ... resulted in a misrepresentation of
subsurface conditions." Id. In Baldi Bros., the other case that Tidewater principally
relies upon, the Court of Federal Claims held that "the construction site was largely
wetlands, which was not ascertainable from the contract specifications or other
information provided by the contract bid documents, or a site inspection." Baldi Bros.,
50 Fed. Cl. at 79. Here, the record shows that there were no comparable omissions.

Second, Tidewater has failed to allege a Type I differing site condition because
it does not allege what contract indications, if any, regarding subsurface soil conditions
constitute the predicate for its claim. It is familiar that "[a] contractor is not eligible
for an equitable adjustment for a Type I differing site condition unless the contract
indicated what that condition would be." Comtrol, 294 F.3d at 1363 (citing P.J
Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984)).
"As a threshold matter, ... [a Type !]. .. Differing Site Conditions claim is dependent on
what is 'indicated' in the contract." P.J Maffei, 732 F.2d at 916. It is not evident
from Tidewater's two complaints what the contract indications are that it relies upon.

Tidewater's core allegation in its original complaint and amended original
complaint is that, when it undertook construction in 2015, "[t]he subsurface physical
conditions of the soils were significantly saturated and materially different from what
Tidewater reasonably anticipated when it bid on the Project in August 2012 and from
the information contained in the Contract and contract-related documents, which

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included the Geo Report'' (statement 18). Significantly, Tidewater does not identify
the specific representation in "'the Contract and contract-related documents" that it
relies upon. Likewise, in responding to the Corps' motion, Tidewater asserts that
"[t]he unforeseeable and unexpected high groundwater levels ... were materially
different from those represented in the Contract documents," but again does not point
to a specific statement in those documents. (App. opp'n at 9)

Tidewater also alludes to the Geo Report. But we reject Tidewater's argument that
the Geo Report constitutes a contract document. As we have found, the report was not
provided to Tidewater with the contract, but was commissioned by Tidewater after award,
and was addressed to Tidewater (statement 9). There is no evidence that the Corps
endorsed the report's contents (id). Cf McDevitt Mechanical Contractors, Inc. v. United
States, 21 Cl. Ct. 616, 618-20 (1990) (holding inaccurate shop drawings produced by
contractor and approved by government were not contract indications where contractor
was responsible for verifying dimensions shown on drawings). In any event, even if it
were a contract document, the Geo Report does not support Tidewater's position. The
Geo Report did not tell Tidewater that groundwater would be at a particular depth-it
instead warned of varying groundwater depths and recommended that Tidewater
"determine the current groundwater depth at the time of construction" (statement 9).

Tidewater also points to the asserted discrepancy between statements in the
RFP regarding the extent of rainfall, and the rainfall that it actually encountered. In
particular, Tidewater points to the statement in section 2.5 of the Design Compatibility
Guidelines that that "'[r]ainfall averages 46.6 inches annually" (statement 6).
Tidewater asserts that rainfall data presented by the Corps, which reflects annual
precipitation of 51.36 inches between 1981 and 2010 (see statement 19) "is a higher
amount than represented by the Government in the RFP" (app. opp'n at 9). Tidewater
adds that the "unforeseeable and unexpected high groundwater levels encountered by
Tidewater at the Project site were materially different from those represented in the
Contract documents and were unusual in nature and not as Tidewater reasonably
expected at the time of bidding" (id.).

The statement in the guidelines is not on its face a warranty regarding future
rainfall. By its terms, it purports to be no more than a cautionary note regarding
annual average of rainfall in the past. We cannot read it either as a warranty that there
will be 46.6 inches of rainfall annually during contract performance, or that the
average annual rainfall will not exceed 46.6 inches annually.

Third, other considerations militate in favor of summary judgment. Among
them is that the present record contains no evidence of reliance. ·'It is well-established
that a crucial element of...a differing site conditions claim .. .is reliance." Comtrol, 294
F.3d at 1363. "To prevail on a differing site conditions claim, the contractor must
show reliance on the representations in the contract." Id. (citing H.B. Mac, Inc. v.

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United States, 153 F.3d 1338, 1345 (Fed. Cir. 1998)); see also Pacific Alaska
Contractors, Inc. v. United States, 436 F.2d 461, 469 (Ct. Cl. 1971) (holding that, to
prevail on a Type I claim, contractor must adduce proof of "indications which induced
reasonable reliance by the successful bidder that subsurface conditions would be more
favorable than those encountered"); Totem Constn,ction Co., ASBCA No. 35985, 91-1
BCA ,r 23,585 at 118,261 (holding that a Type I claimant "must have relied on the
indications of the subsurface conditions in the contract"). It follows that, when
Tidewater cannot identify the contract indications regarding subsurface soil conditions
that constitutes the predicate for its claim, then it cannot "show reliance on the
representations in the contract." Comtrol, 294 F.3d at 1363.

Similarly militating in favor of summary judgment is the interpretation of the
Differing Site Conditions clause "to apply only to conditions existing when the contract
was executed," not after award. Olympus Corp. v. United States, 98 F.3d 1314, 1318
(Fed. Cir. 1996) (denying recovery under clause for additional costs of post-award oil spill
and strike); R.L. McDonnell Constntction, ASBCA No. 56262, 12-2 BCA ,r 35,172 at
172,589 (finding no basis for differing site conditions claim that was not based on
"conditions existing at the jobsite at the time of contract award"). Here, Modification
No. 02 was issued in December 2012 (statement 8) but the alleged differing site condition
did not appear until June 2015 (statement 12).

CONCLUSION

The government's motion for summary judgment is granted. The appeal is denied.

Dated: November 2, 2018

AdministratI . udge
Armed Services Board
of Contract Appeals

I concur I concur

AA
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals

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 I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 61076, Appeal of
Tidewater, Inc., rendered in conformance with the Board's Charter.

Dated:

JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals

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