CBCA 4779

DENIED: December 20, 2016 CBCA 4779 TUCCI & SONS, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Respondent. J. Craig Rusk and Alix K. Town of Oles Morrison Rinker & Baker, LLP, Seattle, WA, counsel for Appellant. Rayanne L. Speakman, Office of the Chief Counsel, Western Federal Lands Highway Division, Federal Highway Administration, Department of Transportation, Vancouver, WA, counsel for Respondent. Before Board Judges SHERIDAN, WALTERS, and LESTER. SHERIDAN, Board Judge. Tucci & Sons, Inc. (Tucci) appeals the final decision of the Department of Transportation, Federal Highway Administration (FHWA), denying its claim for an equitable adjustment in the amount of $81,320.45 for increased labor and equipment costs resulting from alleged differing site conditions encountered in its performance of utility trench work in Mount Rainier National Park. After a hearing on the merits, we deny the appeal because Tucci was adequately informed by the contract drawings that it was digging in “undisturbed native material” and that, because of the conditions of the site, it should have anticipated that it might encounter a variety of different sizes of boulders. CBCA 4779 2 Background This appeal arises out a contract to reconstruct a 9.7-mile portion of the roadway in Mount Rainier National Park from the park’s Nisqually Entrance to Paradise Valley and install a utility trench in a 6.06-mile length of the road. The park is located on Mount Rainier, which is a snow-capped volcano covered by several glaciers. The glaciers erode materials which travel down the mountain via gravity and rivers as glacial, alluvial, and mud deposits containing sands, gravel, cobbles, and boulders. Beneath those materials is bedrock, which sometimes breaches the surface of the deposits. The Board takes judicial notice of the fact that construction of the Nisqually Entrance to Paradise Valley portion of the roadway began in 1903 and was completed in 1915. 48 CFR 6101.25(a)(1) (2015); see http://npshistory.com/publications/highways/mount_rainier/mount-rainier.pdf (an online park brochure “Highways in Harmony, Mount Rainier Roads and Bridges” that was last visited Dec. 16, 2016). The road from Nisqually Entrance to Paradise Valley was one of the first roads built in a national park. A. Solicitation In 2013, the FHWA’s Western Federal Lands Highway Division (WFLHD) solicited bids for the reconstruction of portions of the roadway from Nisqually Entrance to Paradise Road and construction of utility trenches within portions of that road. The utility trench work was to be performed on the left-hand side of the downhill lane of the two-lane roadway, the lane that was closer to the mountain.1 The length of the project spanned approximately 32,700 linear feet, beginning at station 25+80 and ending at station 346+00.2 The project drawings detailed four types of utility trenches that the contractor potentially would be constructing for the conduit installation (Types A, B, C, and D), but the contract generally specified the use of the Type A trench. Use of the Type A trench required the contractor to excavate an area two feet wide (24") by three-and-a-half feet deep (42") and to install conduit at a depth of three feet (36"). In pertinent part, drawing K-8, “UTILITY TRENCH TYPE A,” showed “undisturbed native material” outside the trenches, with the Type A trench being backfilled with approximately twenty inches of bedding material, six inches of backfill material, and four 1 The project was along the Nisqually River, which originates at the Nisqually Glacier, one of the main glacial drainages on Mount Rainier. 2 The station numbers denote the trench’s distance in feet from the beginning of Nisqually Road (station 0+00). Thus, the trenching began 2580 feet from the start of the road and ended a distance of 34,600 feet away from the entrance. CBCA 4779 3 inches of aggregate base, and then paved with five inches of minor hot asphalt concrete. The plans for the three other types of trenches similarly showed “undisturbed native material” outside the trenches, and varying amounts of bedding, backfill, and other materials covering the cables which was then covered by four inches of aggregate base, and paved with five inches of minor hot asphalt concrete.