Recent cases I have worked on were U.S. Army Corps of Engineers (“USACE” or the “Corps”) projects. The advantage of creating a claim that the specifications were defective on USACE projects is that the Corps has very detailed requirements for the preparation of geotechnical reports generally and particularly reports specific to certain kinds of projects involving rock excavation and quarries.
Case #1
Major Excavation in Limestone with No Geotechnical Investigation Equals Major Project Delays
This first case involved a contractor who was hired to construct a major navigational lock in a river. The initial phase of constructing the lock was preparing the subgrade to receive large, massive concrete lock walls. The subgrade itself was a hard limestone that had been prepared by a previous contractor through blasting.
The procedures in the contract were prescriptive and required the contractor to clean the excavation, obtain an inspection from the Corps, perform any additional cleaning or removals that were required, and then pour the concrete to begin construction of the lock walls. During the bidding of the project, no geotechnical report was initially provided which is highly unusual for a project of this scale costing several $100 million. Several bidders requested copies of the geotechnical reports and the Corps’ response was that handwritten field logs would be shared, and the contractors would be allowed to view rock cores that were maintained in a shed at one of the USACE facilities.
Because no actual geotechnical engineering report was apparently produced for this project and therefore not provided to the contractors, there was no engineering basis for the subsequent inspection by the Corps to determine what was competent rock that could remain in the excavation or rock that needed to be removed. This resulted in the inspector having no clear direction about what was to be removed and what could remain as the lock foundation. There were also dozens of additional excavations and clean-up required. As shown in the figure above, there are EMs produced by that the Corps detailing the requirements for geotechnical investigations, which amount to checklists for a defective specification claim. These EMs can be used to list the items not adequately performed by the owner. In this case, the Corps in effect did no engineering, no documentation of analyses, very little lab testing, and no analyses of constructability issues. Had an engineering analysis been performed, these conditions would have been assumed in the design and additional remedial excavation would not have been required. Where there was no such documentation of the condition provided, however, the inspector was free to require removal and remediation on numerous interactions. What was documented in the claim was that the Corps failed to follow the dozens of steps required for a project of this magnitude and scale to produce a geotechnical report and the fact that USACE did not follow their own standards were all the basis for large project delays suffered and costs incurred by the contractor. The project was recently settled.
Case #2
This matter involved a combination of a differing site condition and defective specification issues. This example contains a classic red flag which designers and contractors should be aware of when bidding a project. This project involved the construction of a flood control project across a river to prevent flooding of the backlands of this area, following USACE standards. Originally, the project was to incorporate cellular coffer dams created with flat sheet piles near the mouth of the river as it exited into the back bay. At some point, however, the project location moved 100 or more feet upriver, but the geologic investigation was not updated and there were no borings or cone penetrometer tests at the location of the relocated project. This change in location without additional analysis often results in project constructability issues. The head contractor retained the services of a geotechnical engineer to perform a drivability study, which evaluated the sheet piles and geotechnical conditions and recommended the size of the vibratory hammer as well as the impact driving hammer. This hammer would be subsequently required to install the sheet piles, which concluded that the sheet piles could be installed primarily with the use of a vibratory hammer based on the bid time geotechnical borings. Project specifications also directed the contractor to stop driving if practical refusal was encountered. Practical refusal included that considerable damage occurred to the sheet pile head. At that point, the contractor was to cease pile driving.
In this changed location, however, when the contractor had difficulty installing the sheet piles, the owner directed the contractor to bring successively larger pile driving hammers which resulted in damage to the pile heads and epoxy coating.
The claim approach on this project was threefold: First, a classic Type 1 differing site condition case, where the geotechnical conditions encountered during construction were not as represented at bid time. California’s Public Contracting Code 7104 requires that the owner “promptly investigate” a site after the contractor gives notice of a potential differing site condition which is nearly identical to FAR 52.236-2. In this case the owner waited about a year after receiving the DSC notice to conduct an investigation at the location of the relocated project site, which did, in fact, reveal that the geotechnical conditions were significantly denser than that represented at bid time. The second claim was that the specifications were defective in that it not constructible given the requirements of the project. Third was preferential and selective enforcement of the project specifications, where the contractor was not allowed to stop pile driving when damage to the pile had occurred. Instead, the owner directed that the contractor keep driving with successively larger and larger pile driving hammers which created significant project inefficiency as well as related schedule extensions and increased project costs by using and switching multiple hammers. Ultimately, the owner issued several memos which updated its analysis and allowed the contractor to leave the sheet piles shorter than the design tip elevation. This project recently settled.
Lastly, I wanted to cite a legal case that I find interesting that includes both issues of differing site condition and defective specifications and government caused delays, a design build project Nova Group/Tutor-Saliba v. United States. The Project involved the demolition of the existing Pier B (“Old Pier”), a 60-foot wide and 1,175-foot long pier, and the design and construction of an 85-foot wide and 1,325-foot long replacement pier (“Pier B”). In Nova Group/Tutor-Saliba v. United States, COFC Nos. 15-885C, 16-925C, the Geotechnical report said to drive concrete displacement piles, which “would be difficult to penetrate a sufficient distance into very dense glacial soils” and would likely require stingers to help penetrate the denser soils. The contractor did have difficulty driving the required piles and filed a DSC claim.
- NTS filed a claim which included 4 Defective Spec claims. Court of Federal Claims denied NTS Pier B differing site condition claim based on the design-build nature of the contract.
- The court also found that NTS Failed to Demonstrate a Type I Differing Site Condition, ruling that “it was NTS who determined these design depths….” This is owing to the design-build nature of the contract..
- NTS also alleged that “the Government furnished defective specifications? regarding site conditions The Federal Court ruled that all 4 defective specification claims were “intertwined” with DSCC and that these claims collapse into a single claim where the defective spec and DSCC are intertwined.
I also find the case of ECC International vs U.S. Army Corps of Engineers/ASCBC to cover many of the interesting topics of differing site conditions. In closing, I want to thank Ed Gentilcore of Thomson Reuter for encouraging and reviewing this article.
Be sure to check out the next issue of Under Construction, where I will discuss two more cases on this topic!