GRANTED AS TO ENTITLEMENT: April 30, 1993 GSBCA 11766 MOON CONSTRUCTION COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Jerold T. Everard of Groff & Murphy, Seattle, Washington, counsel for Appellant. Marie N. Adamson, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and NEILL. PARKER, Board Judge. Moon Construction Company, appellant, has challenged a final decision by the General Services Administration, respondent, denying it an equitable adjustment for extra expenses incurred to move a building. Appellant has asked the Board to decide entitlement only, and respondent does not object to our doing so. The parties also agreed that we should decide the case on the record without a hearing. Rule 11. For the reasons stated below, we grant the appeal as to entitlement. Background Since 1931, the Sumas Border Station, located on the border between Washington State and British Columbia, has served as a federal customs house and provided temporary lodging for Vaux Swifts, a type of swallow that nests in chimneys during seasonal migrations. Deposition of Alberto Alcala (Alcala Deposition), Exhibit 4. To accommodate a new international roadway, respondent planned to demolish the station. However, the National Historic Preservation Act, 16 U.S.C. 470f (1988), generally requires the Government to move such buildings instead if it can do so at a reasonable price. To comply with the Act's price comparison requirement, respondent issued Solicitation No. GS-09P-90-LTC on March 15, 1990, which asked firms to submit offers for the cost of moving, as well as demolishing, the station. Appeal File, Exhibits 1, 12. If the moving offers exceeded respondent's budget for the project, respondent would accept a demolition offer. Id. Respondent provided for inspection of the building's original blueprints, which are dated May 29, 1931, and captioned "FOR INFORMATION ONLY." Deposition of Clifford Moon (Moon Deposition), Exhibit 9. These drawings described the building as having 12-inch thick brick exterior walls, 4 to 6-inch thick terra cotta interior walls, and 10-inch thick concrete floors made of hollow brick and concrete. Id. Although respondent did not indicate the building's weight on the drawings, an engineering firm at the Government's request had estimated that the building weighed about 500-600 tons. Appeal File, Exhibit 9 at Exhibit 1 thereto. Respondent expected to pay approximately $90,000 to move the station. Id. Although Moon Construction Company, appellant, had no building moving experience, its president, Clifford Moon, visited the site four times. Moon Deposition at 8; Respondent's Exhibit 26 at 2. Mr. Moon reviewed the old blueprints, toured the building's interior, and used construction manuals to estimate that the building weighed about 450 tons. Moon Deposition at 61. Mr. Moon also asked an architect to review the blueprints; the architect likewise estimated the building's weight to be 457 tons. Id.; Declaration of Marlin Gabbert, 2 (Dec. 8, 1992). On April 19, 1990, appellant submitted a "move" offer of $273,721 and a "demolition" offer of $36,986. Appeal File, Exhibit 13. Respondent then asked for best and final "move" offers (BAFOs), and appellant lowered its price to $261,478 on April 25, 1990. Id., Exhibits 14-15. Even though these BAFO prices exceeded respondent's estimate of $90,000, respondent stated that "there is considerable perceived public benefit in retaining the integrity of the building" and asked for a second round of BAFOs. Id., Exhibit 16. Appellant offered $197,518 during this round, id., Exhibit 17, but respondent accepted an offer of $120,000 from Expert Technologies, id., Exhibit 18. Expert Technologies promptly withdrew its offer after it failed to find a relocation site, Moon Deposition at 36, which prompted appellant to call state and federal officials interested in the fate of the Vaux Swifts and the Audubon Society to solicit extra funds for the project. Respondent's Exhibits 2-7; Moon Deposition at 22, 69. However, neither group promised help. Appellant also obtained from J.W. Dent, a professional building mover, a subcontract bid of $88,000 plus tax to move the building. Appeal File, Exhibit 6 at Exhibit 2 thereto. Using these new figures, appellant on June 15, 1990, submitted to respondent an unsolicited offer of $119,518 to move the building in 137 days. Appeal File, Exhibit 3. Mr. Moon testified that he was able to lower the offer by choosing a different method of financing the purchase of the new building site, extending the moving schedule, and eliminating the middle level of project supervision. Moon Deposition at 39-40, 70-71, 120-29. Appellant estimated that it could raise the building during July and August, then move it during September and October 1990. Respondent accepted the offer and awarded Contract No. GS-09P-90- LTC-0230 to appellant on June 19, 1990. Id., Exhibit 4. Appellant began working at the site that summer. Moon Deposition at 23. The solicitation and contract included the standard Differing Site Conditions and Site Investigation clauses. Appeal File, Exhibit 1 at 59. The Differing Site Conditions clause, 48 CFR 52.236-2(a) (APR 1984) (FAR 52.236-2(a)), required appellant to: promptly, and before the conditions are disturbed, give a written notice to the Contracting Officer of (1) subsurface or latent physical conditions at the site which differ materially from those indicated in the contract, or (2) unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the contract. (Emphasis added). The Site Investigation clause, FAR 52.236-2(a) (APR 1984), required appellant to acknowledge: that it has taken steps reasonably necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cause, including but not limited to (1) conditions bearing upon transportation, disposal, handling, and storage of materials . . . (5) the character of equipment and facilities needed preliminary to and during work performance. Moving the building first required appellant to cut the building away from its foundation and insert steel beams into holes drilled in the building's sides. Appellant next needed to fill the former basement of the building with railroad ties to raise the level of the ground beneath it, install a mat underneath, and attach hydraulic jacks to the steel underpinning beams. Finally, appellant needed to raise the building on the jacks, slide it onto the towing dollies, and move it across the street. Appeal File, Exhibit 21. Appellant spent August and September, 1990, saw-cutting the building off its foundation and purchasing a nearby new building site. Id., Exhibit 19. Due to delays in grading the relocation site, appellant on October 5, 1990, asked respondent for a time extension from October 11 through October 25, 1990. Id. Before respondent replied, appellant on October 10, 1990, requested a second time extension through November 10, 1990, so it could obtain local construction and moving permits. Id., Exhibits 19, 20. Appellant intended to move the building on November 7, 1990. Moon Deposition at 27. Respondent already had assigned a highway contractor to begin paving the new roadway lanes at the old site. In a memo to the file dated October 10, 1990, the contracting officer noted that: Time beyond October 25 cannot be granted on a no-cost basis because, based on a schedule submitted for the follow-on site improvement project, presence of the building would possibly lead to claims against the government for delay and/or inefficiency. Respondent's Exhibit 19. Respondent ultimately granted appellant an extension through October 25, 1990, but warned that "any claim by the said [site improvement] contractor for remuneration due to delay or loss of efficiency caused by your performance may be assessed against your contract." Respondent's Exhibit 20. On November 10, 1990, the nearby Nooksak River flooded. Appellant had lifted the building onto the wheeled dollies and was ready to move the building on November 11th, but the City of Sumas withheld permission to use the roads until the ground stabilized. With a letter from the City of Sumas concerning the flood attached, appellant submitted a third request for a ten-day extension, through November 20, 1990. Appeal File, Exhibits 22, 23. Finally, appellant moved the building on November 18, 1990, Moon Deposition at 90, using fourteen, rather than the expected ten, dollies to carry the building, Deposition of James Dent (Dent Deposition) at 18. Although the pressure gauges that could measure the building's weight precisely did not work that day, appellant knew that the mover had to use sixteen, rather than eight, hydraulic jacks to lift the building. Moon Deposition at 78, 89. Appellant submitted its final invoice for $65,970.14 on November 26, 1990. The contracting officer's representative, Mr. Alcala, testified that Mr. Moon told him between November 29 and December 5, 1990, that appellant's subcontractor had underestimated the weight of the station, which caused trouble in moving the building to its new site. Alcala Deposition at 20-24, 27. Mr. Alcala also testified that Mr. Moon told him that the move required more dollies than expected. Id. at 24-25. On December 5, 1990, respondent returned appellant's invoice dated November 26, 1990, due to appellant's failure to submit a release of claims. Appeal File, Exhibit 24. Appellant sent a second "final" invoice for the remaining unpaid $59,994.24 on December 17, 1990, id., Exhibit 27, and then a third one along with a conditional release of claims dated August 8, 1990, for the balance due of $5,975.90, id., Exhibit 28. Respondent returned this last one pending resolution of this dispute. Id. Appellant and its subcontractor discussed possible recovery of funds from the Federal Emergency Management Agency during January 1991. Moon Deposition at 109-10. On February 27, 1991, appellant notified the contracting officer that it planned to request additional monies pursuant to the Differing Site Conditions clause because the building weighed significantly more than the contract drawings had indicated. Appeal File, Exhibit 5. Appellant noted that he had mentioned the weight problem and his intention to file a claim to Mr. Alcala as well as another GSA employee, Maxine Grubesic. Id. On May 16, 1991, appellant filed a claim requesting an equitable adjustment of $104,838, on the grounds that the building weighed 987 tons rather than the expected 500. Id., Exhibit 6. Appellant used the pressure gauge readings that its subcontractor took when it lowered the building onto its new site. Dent Deposition at 20-21. While installing new plumbing and wiring in the building, appellant learned that the building's exterior consisted of pressed, rather than common, brick. Id. at 123-24. Appellant also found that the building's interior walls consisted of concrete, rather than terra cotta and wood, while its floor consisted of reinforced, rather than regular, concrete and hollow brick. Id. at 126-31. To prove the reasonableness of its original weight estimate, appellant noted that it had obtained through a Freedom of Information Act request a Government estimate stating that the building weighed 500-600 tons. Appeal File, Exhibit 6 at Exhibit 1 thereto. Appellant stated that its subcontractor's excess moving costs were $91,596, while its overhead attributable to the project was $2,933.52. Id., Exhibit 6 at Exhibits 6, 8, and 10 thereto. Its profit was $371. Id. The contracting officer on June 17, 1991, requested that appellant first specify which solicitation documents provided an estimate of the building's weight, then explain why it did not inform the Government of the differing site condition during the fall of 1990. Id., Exhibit 7. On August 5, 1991, appellant replied, contending that the building materials differed from those indicated in the blueprints. Mr. Moon also recalled his discussion of the problem with Mr. Alcala and Ms. Grubesic when submitting its final invoices. Id., Exhibit 8. On February 27, 1992, the contracting officer issued his final decision denying appellant's claim, on the general grounds that the Government "had no knowledge at all of any weight problems until the building was being moved," and that its officers never saw the Government-commissioned estimate from 1987 that the building weighed 500-600 tons. Id., Exhibit 9 at 2-3. Appellant timely filed its notice of appeal with the Board on March 18, 1992. Id., Exhibit 10. Discussion Appellant argues that it is entitled to an equitable adjustment pursuant to the contract's Differing Site Conditions clause. Appellant avers that it satisfied the prerequisites to recovery, since it conducted a thorough pre-bid inspection and reasonably relied upon the Government-furnished blueprints. Appellant also contends that respondent waived the clause's written notice requirement because Mr. Alcala had actual notice of the weight problem shortly after appellant encountered it. Appellant also argues that respondent suffered no prejudice from any failure to notify since it would have been liable for the costs appellant had already incurred to lift the building, plus the cost of resetting the building into its foundation and dynamiting it, and delay damages that its highway construction contractor had incurred. Respondent counters that appellant knowingly underbid the project and unreasonably relied upon the 1931 blueprints in estimating the building's weight. Respondent also contends that appellant's failure to comply with the Differing Site Condition clause's written notice requirement bars recovery now, since the Government could have saved money had it known of the weight problem before appellant "disturbed the site." Although we are sympathetic to the travails that respondent endured to save this building for the City of Sumas and the birds, we find appellant entitled to an equitable adjustment. First, we find that a "Type I" differing condition was present here, i.e., "subsurface or latent physical conditions at the site which differ materially from those indicated in the contract." As we stated in Cherry Hill Construction, Inc. v. General Services Administration, GSBCA 11217, 92-3 BCA 25,179, at 125,476, a contractor may recover if it shows that it reasonably interpreted and relied on information contained in the contract, that a site visit would not have affected that interpretation, and that actual conditions were materially different from what was expected. The Government cannot absolve itself of risk merely by labelling drawings "FOR INFORMATION ONLY," since "although Government furnished plans need not be perfect, they must be adequate for the task or "reasonably accurate." John McShain, Inc. v. United States, 412 F.2d 1281, 1283 (Ct.Cl. 1969); see also Cherry Hill, 92-3 BCA at 125,476 ("When the Government puts such information [results of soil test borings for information only] into a solicitation, it does so to aid prospective bidders in preparing their bids, and consequently, it must expect that they will use the data for that purpose."). Here, the offerors had nothing to rely upon but the drawings and their findings at a site inspection. The drawings' representation as to the thickness and composition of the interior walls, exterior walls, and flooring were inaccurate, as appellant's later cuts through the building to install wiring revealed. Moreover, appellant's interpretation of the drawings comported generally with that of Mr. Moon's commissioned architect and the Government-commissioned engineer, both of whom relied only on the drawings and estimated that the building weighed between 450 and 600 tons. Next, we find that Mr. Moon conducted a thorough enough site inspection to qualify for an adjustment under the site condition clause. See J.S. Alberici Construction Co., GSBCA 9897, 89-3 BCA 22,224, at 111,755 (without adequate site inspection, no recovery even if significant differing site condition). This and other boards have consistently held that a contractor can satisfy the site inspection prerequisite by touring a building and looking at its features carefully. The contractor at that time must spot and consider glaring, patent discrepancies between the drawings and features found. Assurance Co., ASBCA 25254, 83-2 BCA 16,908, at 84,149, aff'd sub nom. Assurance Co. v. United States, 813 F.2d 1202 (Fed. Cir. 1987). If the Government requires greater site inspection expertise, it must so specify in the solicitation, Darwin Construction Co., ASBCA 27596, 86-1 BCA 18,645, at 93,688 (1985), or add a standard "measurements" clause to the agreement, Consolidated Construction, Inc., GSBCA 8871, 88-2 BCA 20,811, at 105,207, aff'd sub nom. Consolidated Construction v. United States, 889 F.2d 1101 (Fed. Cir. 1989). Specifically, the boards have found that a contractor generally need not drill through walls, ceilings, or floors to test composition during a site investigation, since, as we stated in Alart Plumbing Co., GSBCA 6487, et al., 84-1 BCA 17,229, at 85,802: [t]he answer to whether a reasonable inspection would have included poking holes in the ceiling can readily be obtained by imagining the reaction of the personnel at the building if appellant had tried to make such holes during its pre-bid inspection . . . . The Differing Site Conditions clause allocates certain risks to the Government so that contractors will not put contingencies in their bids for those risks. Here, no one disputes that Mr. Moon toured the site four times, took the extra step of consulting with an architect in preparing his bid estimate, and discussed the project with at least two building moving subcontractors. Finally, we find that appellant's failure to comply with the contract's written notice requirement does not bar recovery here. The boards long have declined to enforce the writing requirement when the Government cannot show that it would have saved money by stopping the project before the contractor "disturbed" the site, or when we have found that written notice would not have affected the Government's ability to mitigate damages. Cherry Hill, 92-3 BCA at 125,477; see Rock Creek Associates K Ltd. Partnership v. General Services Administration, GSBCA 11333, 93-1 BCA 25,351, at 126,371; Casson Construction Co., Inc., GSBCA 4884, et al., 83-1 BCA 16,523, at 82,130-31; Powers Regulator Co., GSBCA 4668, et al., 80-2 BCA 14,463, at 71,321. In these situations, we have found that the contractor's decision to tackle a problem without notice so that it could complete its contract work did not put the Government at "unnecessary risk": Regardless of terminology, the issue is whether the Government has been unnecessarily put at risk - either the risk of additional liability to the contractor or the risk of being unable to prepare and present its defense against the contractor's claim - by the contractor's delay in notifying the Government of the pertinent facts. Powers, 80-2 BCA at 71,321. In R.C. Hedreen Co., GSBCA 4289, 77-1 BCA 12,521, at 60,712, the contractor had difficulty excavating a site and proposed a solution, which the on-site Government representative found acceptable. We found notice, written or not, unimportant when "[t]here was no practical way to solve the problem other than by excavation and filling." Id. at 60,714; accord, Hoel- Steffen Construction Co. v. United States, 456 F.2d 760, 768 (Ct.Cl. 1972) (notice provisions in contract-adjustment clauses should not be applied "illiberally" when Government well aware of operative facts); see also Helmsley-Spear, Inc., GSBCA 7357, et al., 85-3 BCA 18,277, at 91,743 (failure to notify of tax increase pursuant to lease adjustment provision; contractor entitled to recover the taxes under escalation clause because Government admitted that it could not have handled the matter any cheaper on its own). Here, appellant has presented a convincing and unrebutted description of the Government's options once appellant had cut the building off its foundation and filled the basement with railroad ties. Even if appellant had given immediate written notice of a weight problem as soon as it activated the hydraulic jacks, the Government still would have been liable for the cost of sawing the building off its foundation, the cost of lifting the building, and the cost of removing the railroad ties and placing the building back onto its foundation. Appellant maintains that, with the building resting on its foundation more precariously than before, the demolition job would have been more dangerous and expensive. During this process, which, according to appellant, would have taken longer than the move did, the Government also may have been liable to pay delay costs to its highway improvement contractor. The Government has not adequately addressed these issues and, thus, has not established that it suffered prejudice as a result of appellant's failure to provide written notice of the differing site condition. Decision Appellant is entitled to an equitable adjustment under the Differing Site Conditions clause. Accordingly, the appeal is GRANTED as to entitlement. The matter is returned to the contracting officer for a determination of quantum. __________________________ ROBERT W. PARKER Board Judge We concur: __________________________ __________________________ STEPHEN M. DANIELS EDWIN B. NEILL Board Judge Board Judge