Full opinion text
ON PLAINTIFF’S MOTION AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT PER CURIAM: This case was referred to Trial Commissioner David Schwartz with directions to prepare and file his opinion on the issues of plaintiff’s motion and defendant’s cross-motion for summary judgment under the order of reference and Rule 166(c). The Commissioner has done so in an opinion and report filed on March 25, 1970. Defendant filed a request for review by the court, plaintiff urged the court to adopt the commissioner’s opinion and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. The court agrees with the trial commissioner’s conclusions, his recommended disposition, his discussion of the general principles of law applicable to this type of case, and the reasoning of his opinion, except that the court finds it unnecessary to consider whether the particular boring logs in this case indicated conditions other than those actually encountered. The reason why the court need not pass upon the correctness of the commissioner’s discussion of this problem (in the parts of his opinion headed “The indications in the logs, on their face”, “The Board’s decision on the logs as permissible indicators of the subsurface”, and “The alluvial condition and its discoverability on a minimum site examination”) is that the court is of the view that the other indications in the contract of an impermeable subsurface permitting excavation in the dry — the notation as to the types of concrete; the direction that “all concrete shall be placed in the dry”; the omission from the concrete provisions of the documents of any provision for a concrete seal or for a class of concrete of which seals are made; and the so-called “6 tons” note — are sufficient in themselves, without the logs, to sustain the determination that a changed condition was encountered. While the commissioner characterizes these indications as “confirmatory” (in view of his reliance on the logs), the court believes that these features, taken together, supply an independent basis to sustain plaintiff’s claim. The first category of changed conditions in the Changed Conditions Clause refers to conditions materially different from those “indicated in this contract”, and the design features to which we have referred reasonably “indicate” the type of subsurface conditions expected to be encountered. For this part of the Changed Conditions Clause to apply, it is not necessary that the “indications” in the contract be explicit or specific; all that is required is that there be enough of an indication on the face of the contract documents for a bidder reasonably not to expect “subsurface or latent physical conditions at the site differing materially from those indicated in this contract.” In this instance, as Commissioner Schwartz well points out, the design features mentioned above performed that function and could very well lead a reasonable bidder to conclude that he would not meet the type of subsurface conditions plaintiff actually met during performance. On this basis, the court by-passes the issue of whether the logs were another such “indication”, without agreeing or disagreeing with the trial commissioner’s opinion on this point, and treats the case, for the purposes of decision, as if there had been no boring logs at all. The other indications, all of which present purely legal questions unmixed with factual issues, are enough to dispose of the changed conditions problem favorably to plaintiff. As supplemented and qualified by the foregoing discussion, the court agrees with the trial commissioner’s opinion (without adopting or rejecting his discussion of the particular logs in this case) and his recommended conclusions as hereinafter set forth, and hereby adopts the same as its basis for judgment in this case. Therefore, plaintiff is entitled to recover in accord with and to the extent of the conclusion set forth hereinafter. OPINION OF COMMISSIONER SCHWARTZ, Commissioner: Plaintiff sues for $1,417,923 for changed conditions and changes, under a standard government construction contract dated June 18, 1956 with the Bureau of Public Roads of the Department of Commerce for the construction of a bridge over the Terraba River in Costa Rica. The contract provided for the construction of a 56-mile stretch of road of the Inter-American Highway, of which the bridge was a part. The total contract fixed price was $9,607,185; the portion for the bridge was $1,087,560. Plaintiff, a joint venture composed of Foster Construction, C.A., and Williams Brothers Company, was the successful bidder; it subcontracted the bridge for $936,838 to another joint venture known as Caribbean-Macomber-Brunzell, for whose benefit the suit is brought. Both contractor and subcontractor will herein be referred to as the plaintiff or the contractor, except as may otherwise be required. In a proceeding under the disputes clause in the contract, the claims have with minor exceptions been denied by the contracting officer and, on appeal, by the Department of Commerce Appeals Board. This suit followed, and the parties have now made cross-motions for summary judgment, whose disposition requires review of the decision of the Appeals Board, pursuant to the standards of the Wunderlich Act, 41 U.S.C. §§ 321-322. Plaintiff contends that the Board committed errors of law and made findings of fact unsupported by substantial evidence, within the meaning of the Act. All but one of the claims are herein upheld and the decision of the Board is reversed. The determination of damages was in the administrative proceedings postponed to the determination of liability. In accordance with United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966), therefore, proceedings are suspended to give the parties the opportunity to obtain an administrative determination of the amount of the equitable adjustment to which plaintiff is entitled. I. The Claim of Changed Conditions at Piers 4, 5 and 6 Clause 4 of the contract, the standard changed conditions clause, authorizes claims for two types of changed conditions, often called category one and category two: “(1) subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract.” (The full text of clause 4 is set out in an appendix, together with the other contract provisions to which reference will be made.) Plaintiff claims that it encountered both types of changed conditions. Because the claim of category one changed conditions is herein upheld, it will not be necessary to discuss the validity of the claim of category two changed conditions. The controversy centers on the excavation of the cofferdams for the foundations of piers 4, 5 and 6 of the six piers of the bridge. Piers 1, 2 and 3 were constructed without serious trouble. They were on the north, shallow side of the river, which remained dry except at the height of the rainy season. The riverbed sloped downward from the north bank to the deepest part of the channel, between pier 6 and abutment 2 on the south bank. Accordingly, piers 4, 5 and 6 were designed to be larger in size, deeper in the elevation of their footings and wider apart than piers 1, 2 and 3. Drill hole logs and design details and directions attached to the contract, plaintiff contends, indicated that the subsurface at the sites of piers 4, 5 and 6 would be firm and stable, with a 6-ton per square foot bearing capacity at the footings, and relatively impermeable, that is, impervious or resistant to the flow of water, to such degree as would allow the dewatering of the cofferdam by pumping and thereby permit excavation “in the dry.” Further, plaintiff contends that the subsurface conditions encountered were materially different in that the materials were soft, not firm, and unstable, without the expected bearing capacity, and highly permeable. These changed conditions, it is contended, caused a “quick” condition, in which loose and permeable materials gave no firm hold for the sheet piling, and water in great quantities entered the cofferdams, leading to great difficulties in excavation, including losses of cofferdams, and, at piers 5 and 6, made it impracticable to dewater the cofferdam by pumping and thus impossible to excavate in the dry. It is further claimed that the Bureau acknowledged the existence of changed conditions in a series of change orders, in which the conditions encountered were met by a redesign of the foundations, lifting their elevations and providing for steel bearing piles under the foundation of pier 4 and the pouring of concrete seals at the bottom of the cofferdams for piers 5 and 6. Plaintiff was, of course, paid for the piles and the seals. The claim is for other costs incurred by reason of the alleged changed conditions. The defense, a reliance on the decision of the Board denying the claims, will be discussed below. Intimately involved in the claims are the processes termed excavation “in the wet” and “in the dry” of cofferdams, and the pouring of concrete for pier foundations “in the wet” and “in the dry.” The cofferdams for the pier foundations were constructed by driving interlocking steel pile sheeting into the riverbed to form a square, and then excavating within the walls created by the piles. Excavation “in the wet” refers to a procedure by which the excavation takes place underwater and no effort is made to lower the level of the water, within the cofferdam, below the level of the surrounding river. Where, as was the case here, depths of 50 feet were involved, and rocks were expected and encountered, excavation in the wet presents difficulties beyond the inevitable costs and safety problems. Divers must work at substantial depths in murky water and cannot see clearly how to handle the rocks which must be removed from below the piles as they are being driven downwards. In excavation “in the dry,” as the excavation proceeds, pumping gradually lowers the water within the cofferdam to a workable level, somewhat above the bottom of the excavation. No effort is made to pump out all the water; “in the dry” does not mean literally dry. Divers, if any are used, operate only in shallow water, and it is easy to deal with rocks under the piles. Cofferdam piling is not watertight. Water seeps in between the piles, through holes left by rocks removed from below the piles as they are driven, and particularly through the earth at the foot of the excavation. Pumping out or “dewatering” of a cofferdam becomes impracticable if water flows in faster than it can be pumped out. Where this occurs, excavation must take place “in the wet.” Plaintiff was able, defendant recognizes in its briefs, to dewater the cofferdams at piers 1, 2 and 3 sufficiently to excavate in the dry. At pier 4, after the piles were driven, excavation in the dry was accomplished by techniques not involved in the case. At piers 5 and 6, however, excessive water prevented excavation in the dry. Pouring of concrete, also, may take place “in the wet” and “in the dry.” Concrete is poured in the dry when it is poured into a dewatered cofferdam. When excessive water in a cofferdam has prevented dewatering, pouring in the dry is impossible. The solution is to plug the bottom of the cofferdam with a seal made of a special grade of conCrete, known as “S” or tremie concrete, resistant to being washed away by water. The word “tremie” signifies the method of pouring it, underwater. Pouring tremie concrete for a seal is called pouring in the wet. After the seal stops up the bottom of the excavation, the cofferdam can be pumped out, and the standard grade of concrete for the footing proper is poured in the dry. Standard concrete would wash away if poured in the wet; it can be poured only in the dry. When the standard concrete is poured on top of the seal, both become part of the foundation. A. The Conditions Encountered Since proof of the case requires that the conditions encountered must differ materially from those indicated in the contract, the first issue may appropriately be whether excess water and unstable soils were encountered as claimed. Under the Wunderlich Act, the court would be bound by findings by the Board, supported by substantial evidence, of the facts of the conditions encountered. United Contractors v. United States, 368 F.2d 585, 594, 177 Ct.Cl. 151, 160 (1966). Such findings were not made, although the Board said that it was favorably impressed with testimony that the materials encountered were “quite permeable — would permit the passage of as much water as was available.” The evidence in the record, however, is that plaintiff did encounter excessive water and unstable materials, as claimed. The excavation through the cofferdam at pier 4 early encountered “quick” or loose materials, consisting of soft sand. Plaintiff’s log of operations speaks of soil acting like quicksand, with the water pressure from the bottom bringing the water up. The Bureau’s district engineer described the soil as “very loose, non-compact, sand, gravel and small boulders with a low bearing value.” There followed “boils” and finally a “blow” or “blow-in,” that is, progressively greater inrushes of water through loose, non-cohesive soil around and at the foot of the cofferdam. The suction created by the blow drew out such water as was then in the excavation for pier 3, 90 feet away. The Bureau thereupon ordered the work suspended and an exploratory hole drilled in the excavation. The log of this hole showed “loose,” “soft,” “very loose” and “fairly soft” materials of plainly insufficient bearing capacity, to a depth of more than 30 feet below the proposed elevation of the footing on the plans. Accordingly, the design of the foundation was revised, in Change Order No. 10, by the addition of steel bearing piles under the footing. The Description and Reason for Change Order, attached to Change Order No. 10, states: While excavating for the foundation of Pier No. 4 of the Terraba River bridge an unstable foundation condition was encountered at elevation 6.0 ft. Due to the excessive amount of water and material running into the hole at this elevation the contractor stopped work at this location. A test hole was drilled in the bottom of the excavation and three timber test piles were driven. Data from these operations indicated that steel bearing piles would be necessary for this foundation. For the above reasons the footing design for this pier had to be revised. The order establishes that at pier 4 plaintiff encountered “an unstable foundation condition” and an “excessive amount of water." At pier 5, excessive water caused various difficulties and finally became more than pumps could contend with, requiring the abandonment of excavation in the dry. Excavation was completed in the wet. At a point above the plan grade of the footing, the excavation encountered a layer of clay, which the designer of the bridge testified was objectionable for its low bearing capacity, and which a plaintiff’s witness estimated had a bearing capacity of 2 tons per square foot. The Bureau directed that the layer be removed, to a distance of 5 feet below plan grade, and the space backfilled. At the planned elevation of the footing, the Bureau directed that a concrete seal be poured to plug the bottom of the excavation. The Description and Reason for Change Order No. 17 describes what happened as follows: At approximate elevation plus 15 ft. of Pier No. 5 of the Terraba River Bridge it became impracticable to cope with the excessive amount of water entering the cofferdam by pumping. Three-eight inch and five-six inch pumps would not hold the water down low enough so the contractor could carry on the excavation in the dry. When this condition developed the contractor pulled his pumps and continued excavation in the wet to plan elevation. Due to the impracticability of pumping this excavation dry and placing concrete in the dry it is considered necessary to order a concrete seal placed. Since there is no item for Class “S" (Seal) concrete in the contract it was necessary to negotiate a price for it. On the basis of the experience at pier 5, plaintiff requested two additional test borings at pier 6, and the Bureau drilled two holes, 36 and 34 feet to the north and south of the proposed foundation of pier 6. The logs of these holes showed subsurface materials characterized by “seepage zones” and low bearing pressures. The Bureau’s district engineer wrote in a memorandum that “the conditions shown by these two new borings differ from those shown on the plans,” and required the “restudy” of the design of the footings. The redesign of pier 6 is explained in the Description and Reason for Change Order No. 22: Based on the results of further test drilling at Pier No. 6 of the Terraba River Bridge, which indicated a 5 ft. layer of clay at about El. -10.0 ft. or 5 ft. under the elevation of the foundation, it has been decided by our Division Design Office to raise the foundation grade from El. -4.78 ft. to El. - 0.04 ft. to take advantage of the firm material between elevations —0.04 ft. and —10.0 ft. Experience in Pier No. 5 of this same bridge, which was constructed in the same type of material found at Pier No. 6, has proven that it is impracticable to cope with the excessive amount of water entering the cofferdam by pumping, therefore it is considered necessary to order a 14 ft. seal of class “S.” concrete placed at El. -0.04 ft. The quoted orders establish excessive water at piers 5 and 6. The orders and other evidence estabish, also, unstable materials of low bearing pressures at both piers. The statement, in the order, that the subsurface at pier 5 was composed of the same type of material as at pier 6, makes the evidence of low bearing pressure materials at each, applicable to the other. Instability of the subsurface at both piers appears, also, from the fact that the seals ordered at both piers, though primarily intended to overcome the excessive water, were also intended to provide needed bearing strength. A Bureau memorandum directed that the seal at pier 6 should be made as big as the inside dimensions of the cofferdam in process of construction, and cautioned against any such “kicking in” of the bottom dimensions of the cofferdam as had caused the loss of “some bearing area of the seal constructed at Pier 5.” The district engineer wrote to plaintiff that the seal was being made so big “to obtain an increased bearing area.” All the evidence shows that excessive water and unstable soils were encountered at each of piers 4, 5 and 6, and there is no contrary evidence of any substance. To the extent, therefore, that findings were not made by the Board, they may be supplied, and such findings are now made. Maxwell Dynamometer Co. et al. v. United States, 386 F.2d 855, 870, 181 Ct.Cl. 607, 631 (1967); Koppers Co. v. United States, 405 F.2d 554, 558-559, 186 Ct.Cl. 142, 147-151 (1968); Vann v. United States, 420 F.2d 968, 981, 190 Ct.Cl. 546, 569 (1970). B. The Conditions Indicated in the Contract Beyond the issue of fact as to the conditions encountered, there is the issue of what subsurface conditions were, in the words of the changed conditions clause, “indicated in this contract.” Two types of data in the contract, logs of drill holes and design directions and details, are relied upon as indications that the subsurface to be encountered would be impermeable to such degree as would permit excavation in the dry, without the use of a seal, and would be firm and stable, with a 6-ton bearing capacity at planned grade of the proposed pier foundations. The logs are a claimed source of indications of both impermeability and stability. One set of design details is said to confirm the indications of impermeability in the logs and also to contain an indication that the impermeability would be such as would permit excavation in the dry, without the use of a seal. Another design detail is said to confirm the logs’ indications of stability and to add an indication of soils of 6-ton bearing capacity at the planned elevations of the pier foundations. 1. Legal standards for decision. Decision on the claimed contract indications is a matter of the analysis and interpretation of the contract documents, and thus presents a question of law to be decided by the court independently of the decision of the Board. United Contractors v. United States, supra, 368 F.2d at 596 n. 5, 603, 177 Ct. Cl. at 162 n. 5, 173-174; Ray D. Bolander Co. v. United States, 186 Ct.Cl. 398, 411, 415-416 (1968). The Government urges that the question becomes one of fact because it involves the operation of the minds of the plaintiff’s agents in interpreting the agreement or the reasonableness of the inferences drawn by them from the agreement. The construction of a contract, however, includes the determination of the intention ascribed to the parties in using particular words and the meaning one party may reasonably give to the words proposed for insertion by the other (Dynamics Corp. of America v. United States, 389 F.2d 424, 429, 182 Ct.Cl. 62, 72 (1968)), as well as the correct standards for the application of contract language (Perini Corp. v. United States, 381 F.2d 403, 409, 415, 180 Ct. Cl. 768, 777-778, 788 (1967); National Steel and Shipbuilding Co. v. United States, 419 F.2d 863, 873-874, 190 Ct.Cl. 247, 263-265, (1969)). Whether the Board made any “subsidiary” findings of fact which, the Government lastly urges, are entitled to finality, depends on whether the facts so found were “simple facts” (Perini Corp. v. United States, supra, 381 F.2d at 409,180 Ct.Cl. at 777), and is a matter for consideration in connection with any such findings. The standard to which plaintiff is held in proving contract indications of subsurface conditions, the Board held, is that of misrepresentation by the Government. On a review of the opposing testimony, largely by expert witnesses, the Board concluded that plaintiff “fell very far short” of meeting the burden of proving “by a preponderance of credible evidence” that the Bureau had misrepresented the jobsite conditions. The appropriate standards for a category one changed conditions claim are otherwise. The issue of the indications in the contract is one of law for decision by the tribunal, not an issue of fact to be proven by a preponderance of expert testimony and to be decided on the basis of a failure of the plaintiff to meet a burden of procf. The standards for decision are not those for determining Government misrepresentation, but rather the standards appropriate in the construction of contract language and particularly the changed conditions clause in the light of its underlying policy. In misrepresentation, the wrong consists of misleading the contractor by a knowingly or negligently untrue representation of fact or a failure to disclose where a duty requires disclosure. Flip-pin Materials Co. v. United States, 312 F.2d 408, 410-413, 160 Ct.Cl. 357, 359-365 (1963); Morrison-Knudsen Co. v. United States, 345 F.2d 535, 539, 170 Ct.Cl. 712, 718-719 (1965). The claim may be proven, where it is based on a breach of a duty to disclose, though the contract is silent on the nature of the subsurface to be encountered, and in any type of case though the contract contains no changed conditions clause. Some degree of Government culpability — either untruth or such error as is the legal equivalent — must, however, be shown, and the plaintiff’s burden of proof is not satisfied merely by proof of a variation between the subsurface conditions as stated in the contract and as encountered. Midland Land & Improvement Co. v. United States, 58 Ct.Cl. 671, 683-684 (1923), aff’d 270 U.S. 251, 46 S.Ct. 218, 70 L.Ed. 570 (1926); C. W. Blakeslee & Sons v. United States, 89 Ct.Cl. 226, 250-251 (1939), cert. denied, 309 U.S. 659, 60 S.Ct. 512, 84 L.Ed. 1007 (1940). The claim based upon the modern changed conditions clause is very much different, though it may arise from the same facts and be joined with a claim for misrepresentation. E. g., J. A. Terteling & Sons v. United States, 390 F.2d 926, 927, 182 Ct.Cl. 691, 694 (1968). See Gaskins, Changed Conditions and Misrepresentation Under Government Contracts, in Changes and Changed Conditions, Government Contracts Monograph 3 (1962) 14, 22-23. Misrepresentation is not the issue. While the predecessors of the modern changed conditions clause spoke of “misrepresented conditions,” those words were dropped long before the adoption in 1953 of the version of the clause found in the present contract. State Bar of Calif. Comm, on Continuing Education of the Bar, Government Contracts Practice § 14.72 (1964). In the modern version of the clause, “ * * * a finding that the contractor was actively ‘misled’, in the sense that the Government ‘withheld’ or ‘concealed’ information within its grasp, is not essential to proof of a changed condition. * * * Fault on the part of the Government is not a necessary element.” United Contractors v. United States, supra, 368 F.2d at 597 n. 6, 177 Ct.Cl. at 165 n. 6 (1966) , and cases cited. See Kendall, Changed Conditions as Misrepresentation in Government Construction Contracts, 35 Geo.Wash.L.Rev. 978, 978-82 (1967) . A changed conditions claim, so far as the contract is concerned, is entirely dependent on what is “indicated” in the contents of the contract documents. On the one hand, a contract silent on subsurface conditions cannot support a changed conditions claim, as it could a claim for misrepresentation. Ragonese v. United States, 120 F.Supp. 768, 769, 128 Ct.Cl. 156, 159 (1954). On the other hand, nothing beyond contract indications need be proven. “The first portion of Article 4 requires only that actual conditions encountered ‘materially differ’ from those shown or indicated on the plans or specifications.” United Contractors v. United States, supra, 368 F.2d at 597 n. 6, 177 Ct.Cl. at 165 n. 6. The causes of an erroneous indication in the contract — whether simple error, negligence or other — are no longer important. An “indication” may be proven, moreover, by inferences and implications which need not meet the test for a “misrepresentation” or “representation,” concepts which have a long common law history associated with fraud. In thus ending the need to prove Government fault and limiting the issues to the indications in the contract, a matter of law for decision for the court, the changed conditions clause eliminates the factual elements of misrepresentation and any need to impose a burden on plaintiff to prove those elements. The claimed contract indications will be considered in the light of the foregoing formulation of the issue and the appropriate standards for its decision. 2. The indications in the logs, on their face. The drawings attached to the contract documents, the answer admits, “conveyed certain information regarding the nature of subsurface conditions to be encountered” during excavation for the pier foundations, in the form of “logs of the drill holes" of “exploratory drillings * * * conducted by the Bureau of Public Roads in order to determine the subsurface conditions.” The data consisted, as is customary, of profile drawings of the contents of the holes and accompanying legends. All the holes were drilled on the center line of the 1100-foot length of the bridge, which was composed of four spans, each 90 feet long, separating abutment 1 and piers 1, 2, 3 and 4, and three spans, each 250 feet long, separating piers 4, 5, 6 and abutment 2. Plaintiff relies on drill holes 1, 2, 3 and 4. Drill hole 1 was located almost at Pier 2. Drill hole 2 was between Piers 3 and 4, 30 feet south of Pier 3 and 60 feet north of Pier 4. Drill hole 3 was between Piers 4 and 5, 190 feet south of Pier 4 and 60 feet north of Pier 5. Drill hole 4 was between Piers 5 and 6, 190 feet south of Pier 5 and 60 feet north of Pier 6. The logs of the four holes showed three types of materials: a surface layer, in each hole, of type 2, “sand and gravel, loose,” and below, only two types of material, both apparently firm and stable and containing clay mixtures; type 3, “sandy clay with few boulders firm,” and type 4, “boulders, voids filled with sand and clay.” The presence of “boulders,” with “filled” voids of sand and clay, and “firm” sandy clay with few boulders is said to indicate firm and stable materials, and the character of both of these materials as clay mixtures is said to indicate that the subsurface would be relatively impermeable. Only the second of these propositions requires explanation. As amateur gardeners know, the presence of clay tends to make soil impermeable. It is elementary soils learning that clay molecules are cohesive and bind the soil together to resist the flow of water, to the point that clay-type materials may be virtually impermeable. On the other hand, granular materials, such as sand, lack the molecular attraction of clay and are held together only by the friction of their touching particles. Any water pressure destroys their contact and the material becomes “quick,” that is, freely permeable. “All materials,” said the soils engineer who testified as a Government expert, “can become quick to some degree with the exception of clay materials.” The approximate thickness of the layers in feet was: The pattern of the four logs suggests strata running across the river. A surface layer of sand and gravel is found in each hole, and as the riverbed slopes downward from hole 1 to hole 4, the surface layers narrow, from 24 to 22 to 15 to 6 feet, in conformity with the descent of the riverbed shown by the elevation of the tops of the holes, .from elevation +54 to +52 to +45 to +40. Immediately beneath the surface layer in holes 1 and 2, and beneath relatively small layers of type 3 material in holes 3 and 4, each hole has a substantial layer of type 4 material — 16, 21, 24 and 38 feet deep, a gradual thickening suggestive of a cross-river stratum. The elevations of the tops of these layers, +30, +30, +24 and +19, seem to descend in conformity with the riverbed. No contra-indications come from the distance of the logs from the pier sites. Only interpolation is required for the application of the logs to the site of pier 4, which is bracketed by drill holes 2 and 3, and to the site of pier 5, which is bracketed by drill holes 3 and 4. Pier 6 is not similarly bracketed. Drill hole 4 is 60 feet north of the site of pier 6. (Hole 5, 125 feet to the south of pier 6, higher on the ascending riverbed and relatively shallow, is not relied upon by plaintiff.) Extrapolation of the hole 4 data to pier 6 is warranted by the stratification indicated in holes 1 through 4 and the 38-foot layer of type 4 material in hole 4. The regular distances between the pier sites and the drill holes suggest, moreover, that the designer made just such interpolation and extrapolation from the drill holes to the proposed pier sites as plaintiff relies upon. Both interpolation and extrapolation were reasonable. On their face, therefore, the logs give readily discernible, strong and therefore entirely reasonable indications, within the meaning of the changed conditions clause, that relatively impermeable and stable and firm materials would be encountered in excavating for piers 4, 5 and 6. 3. The Board’s decision on the logs as permissible indicators of the subsurface. The Board held the logs impermissible indicators of subsurface conditions at the sites of piers 4, 5 and 6, on the ground that logs of drill holes as distant as these from the pier sites were not intended to reflect, and should not be read as reflecting, the nature of the subsurface, in an alluvial riverbed. The alluvial condition of the riverbed, the Board held, was discoverable by plaintiff on a minimum examination of the site. The Board’s rationale, while not expressed in findings or conclusions, can be gathered from its descriptions of the conflicting expert testimony. It stated that the Government's experts, whose tesimony it said it preferred, testified that “the boring information was more or less obviously subject to almost constant variation on account of the known turbulence of the river and the alluvium or changing nature of its bed,” and that “the conditions encountered were to no degree abnormal, taking into account the general characteristics of the job situation apparent from even a routine and more or less minimum site examination of the surrounding area, the river, its banks and bed.” The Board criticized the plaintiff’s witnesses for interpreting the logs as indicating conditions at the pier sites, some distance away. Such an interpretation, the Board said, rested on the “doubtful” assumption that “the boring data relating to locations some distance away were intended to and did reflect in exact and full detail conditions at the pier locations.” In making this assumption, the Board said, the witnesses were “taking no account of inevitable variations in such situations generally and the fairly obvious changing characteristics and impact on subsurface soil conditions of a turbulent river and river bed of an alluvial nature as here involved.” In the last analysis, the Board rejected the logs because of the failure of the plaintiff to perform the required site investigation, on which, the Board held, the alluvial condition of the riverbed would have been apparent. While the Board did not cite specific contract provisions for site investigation, it spoke of “the separate contract requirements for site examination and reasonable investigation of all the contract conditions,” apparently a reference to Article 2.3 of specifications FP-41 (see note 1, above). The Article (text in appendix) requires the bidder “to examine carefully the site of the project contemplated” and provides that submission of a bid shall be prima facie evidence that “the bidder has made such examination and is satisfied as to the conditions to be encountered in performing the work as scheduled.” The Board did not mention or paraphrase the Instructions to Bidders, Standard Form 22, which the bid schedule directed bidders to read carefully and which states: 2. Conditions at Site of Work. Bidders should visit the site to ascertain pertinent local conditions readily determined by inspection and inquiry, such as the location, accessibility and general character of the site, labor conditions, the character and extent of existing work within or adjacent thereto, and any other work being performed thereon. The Board’s references to the requirements for site examination were made in the course of its disposition of the Government’s arguments based upon the note in the contract plans disclaiming governmental responsibility for the logs. The note reads as follows: “Note: Drill Hole Data shown for information only. The Bureau of Public Roads does not assume responsibility for the accuracy of the data.” The Board did not accept the Government’s contention (not raised in this court) that the disclaimer absolved it of all responsibility for the logs. The disclaimer, the Board held, does not entitle the contractor to read more into the contract data than appears or relieve him of his responsibility for judging the data properly and for complying with the contract requirements for site examination and “investigation of all the contract conditions.” It is “a desirable cautionary observation or reminder to the contractor that he should consider and rely upon the boring data and other contract information for what it may be worth and that he should not confine his investigation of the contract conditions to the contract itself.” The disclaimer thus seems to have been held to reinforce the duty of site investigation. 4. The alluvial condition and its discoverability on a minimum site examination. The Board did not make findings in support of its decision on the effect of an alluvial condition upon the logs or on the nature of the “minimum” site examination from which the alluvial condition would have been “obvious.” For these matters, the record must be consulted. A soils engineer, one of two representatives of an engineering consulting firm who appeared as expert witnesses for the Government, testified that the river’s extreme turbulence and highly erratic flood levels subjected the stream bed to erratic erosion and alluvial deposit, depending on the river’s load-carrying capacity at various stages, with the result that the subsurface had become an “alluvial fan.” An alluvial fan has been so stirred up as to become heterogeneous, without well-defined soil types or stratification. Its lenses or pockets are made of many different types of material. This condition, called lenticularity, existed, the witness said, throughout the subsurface of the riverbed. In a lenticular subsurface, the materials can change if “you move five feet.” Stratification is negatived, extrapolation of indications for any distance from a core and even interpolation between two cores are not warranted. In such a subsurface the drill hole data in the contract could no longer be taken as indicating uniform layers of materials across the river, or as indications of the subsurface at the proposed pier sites. The testimony of the soils engineer, interpreting the logs in the light of his knowledge of the alluvial condition, was the basis for the Board’s statement that the Government’s witnesses testified that “the materials described in the boring data were quite permeable — would permit the passage of as much water as was available.” The implicit holding is that knowledge of the alluvial condition required interpretation of the logs as indicating alluvium. Plaintiff’s expert disputed the alluvial condition. And some doubts are raised by testimony of Government witnesses on the origins of the drill hole data attached to the contract. The holes whose logs are attached to the contract were drilled by the Bureau in 1954, two years before the contract was let. Two Bureau engineers supervised the drilling, and the junior of them made interpretations of the cores (all contract “logs” are actually interpretations of cores). Two years later, shortly before the contract was advertised in 1956, the senior engineer made other interpretations. Only these were attached to the contract. Bidders were not given or told of the earlier interpretations. The two were radically different in the materials they showed. For instance, the first interpretations showed shale and, in every hole, calcareous conglomerate, a material testified to be as permeable as any imaginable; the second set showed neither of these materials. When the first interpretations came to light in the course of the instant proceedings, and the differences between the two became the subject of cross-examination of the soils engineer and the designer of the bridge, both witnesses testified that the earlier interpretations were erroneous. Asked to account for the errors, they said that the interpreter was unaware of the nature of the stream and the alluvial formation of the stream bed. Whether the first interpretations were right or wrong, this testimony raises difficulties for the defense. If the first interpretations were wrong, and the alluvial condition was really unknown to a Bureau engineer assigned to supervise the drilling and interpret the core borings, surely bidders cannot be expected to learn what such a man does not know. If the interpretations were right, then their disclosure of highly permeable conglomerate should have been passed on to bidders, and the failure to do so raises “delicate and serious questions of misrepresentation or liability based on failure to disclose pertinent information.” Kaiser Industries Corp. v. United States, 340 F.2d 322, 331, 169 Ct.Cl. 310, 325-326 (1965). Turning from the alluvial condition itself to the ease of its discovery on a proper site examination, the evidence is as follows. The invitation for bids was dated April 23, 1956. Bids were due and were opened June 1, and the contract is dated June 18. The project, a 56-mile road and bridge, was located in the interior of Costa Rica. The invitation for bids said that “The project is isolated and bidders are requested to inspect the project in a group,” to be “escorted over the proposed work by the District Engineer” on May 10, 1956. A Bureau circular relating to the field inspection said that a single field trip was desirable because of “limited access and absence of travel facilities,” and accordingly urged that representation by each bidder “preferably be one, and limited to two.” The bidders thus had at most the period between May 10 and June 1 to study the plans, compute and file their bids. Plaintiff’s representatives made one and perhaps two plan-in-hand visits to the site, where they made a visual inspection. The evidence is that they accepted the logs as to the nature of the subsurface and did not know of any alluvial condition requiring a different meaning of the logs than appeared on their face. Three Government witnesses, the designer of the bridge and the two expert witnesses, testified as to the means by which the alluvial condition could have been discovered. The designer of the bridge, who had supervised construction for the Bureau, testified on cross-examination that he anticipated lenses: “I didn’t know for sure they existed, but I anticipated them.” Also, that he felt that the core borings had given him sufficient subsurface information on which to design and locate the piers, despite the distance of the drill holes from the piers, “because of the nature of the stream with which I was thoroughly familiar.” He was asked whether he thought it misleading to allow the logs to show that the subsurface would be boulders with voids filled with sand and clay, when his opinion was that there would be lenses of many different types of materials. He responded, “I think the contractors bidding on this job are intelligent people, who could go and look at the river. That is all they had to do to determine the character of the foundation material, which was an alluvial deposit, and certainly they could see thal. There was no misleading of any kind.” This seems to have been the testimony the Board had in mind in referring to testimony that the alluvial condition was fairly obvious. The testimony of the expert witnesses does not leave the impression that the discovery of the alluvial condition would have been quite so simple. The soils engineer described generally investigations by contractors, which included, he said, visual observation of the type of material in the stream bed and the stages of the river, inquiries from local people to gather previous high watermarks and to learn the fluctuation of the river, and employment of an investigative firm of the type which performs, for contractors, borings, seismic studies and resistancy studies, and ascertains the ripperability of rocks and the location of aggregates for concrete and of sources of borrow. He said that the studies appropriate in the instant case (unspecified, but presumably those which would have led to discovery of the alluvial condition) would have cost about $6,000, and could have been completed in 10 days. Disagreement was expressed by the Government’s other expert, a bridge designer who, among other things, had been the designer and “general factotum” in the building of the Chesapeake Bay Bridge at Annapolis and the East Capitol Bridge in the District of Columbia. He testified that he would not expect a contractor to be experienced in soil mechanics or geology but to have access to people with such skills. In the short time here available, he said, the contractor could not make exploratory borings and would be forced to rely on “his inspection at the terrain, which included of course raising the different points with the people around him; natives and so forth and so on, and his own knowledge or knowledge he could obtain from people versed in the type of geology and terrain.” At another point he said that the bidder would have to base his judgment on the terrain, his inspection and his experience: “He makes up his price to cover the lack of information.” The plain implication from his testimony is that the alluvial condition could not have been discovered by a bidder, without help from technicians, and certainly not before the time the bid was due. To sum up, the testimony of neither expert, and no other evidence except that of the designer of the bridge, supports the thought that the alluvial condition would be obvious to a bidder on a mere visual inspection of the site. The evidence is that technical services by core drillers, by a trained geologist or both, would have been necessary. The two experts disagreed as to whether the bidders in this case had enough time to employ the necessary technicians. On the whole record, my conclusion is that there is no evidence of any substance to support a finding, if a finding of fact entitled to the benefits of the Wunderlich Act was made, that an alluvial condition of the riverbed would have been apparent to bidders on a visual inspection. On the whole record, the evidence supports the finding, and it is now made, that an alluvial condition having the effect of limiting the reliability of the logs to the immediate vicinity of the drill holes was not apparent to bidders on a visual inspection of the site, and was discoverable, if at all, on the performance of studies requiring geological or other skills beyond those which can reasonably be expected from bidders and which the bidders had no reason to cause to be made. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Koppers Co. v. United States, supra; Sundstrand Turbo v. United States, 389 F.2d 406, 418, 182 Ct.Cl. 31, 52 (1968). The decision of the Board is now seen as one charging plaintiff with notice of an effect on contract logs of a geological condition not discoverable on a visual inspection of the site. As such, it is erroneous as a matter of law, for it improperly enhances the duty of site investigation at the expense of the changed conditions clause and its underlying policies. The starting point of the policy expressed in the changed conditions clause is the great risk, for bidders on construction projects, of adverse subsurface conditions: “no one can ever know with certainty what will be found during subsurface operations.” Kaiser Industries Corp. v. United States, supra, 340 F.2d at 329, 169 Ct.Cl. at 323. Whenever dependable information on the subsurface is unavailable, bidders will make their own borings or, more likely, include in their bids a contingency element to cover the risk. Either alternative inflates the costs to the Government. The Government therefore often makes such borings and provides them for the use of the bidders, as part of a contract containing the standard changed conditions clause. Bidders are thereby given information on which they may rely in making their bids, and are at the same time promised an equitable adjustment under the changed conditions clause, if subsurface conditions turn out to be materially different than those indicated in the logs. The two elements work together; the presence of the changed conditions clause works to reassure bidder that they may confidently rely on the logs and need not include a contingency element in their bids. Reliance is affirmatively desired by the. Government, for if bidders feel they cannot rely, they will revert to the practice of increasing their bids. The purpose of the changed conditions clause is thus to take at least some of the gamble on subsurface conditions out of bidding. Bidders need not weigh the cost and ease of making their own borings against the risk of encountering an adverse subsurface, and they need not consider how large a contingency should be added to the bid to cover the risk. They will have no windfalls and no disasters. The Government benefits from more accurate bidding, without inflation for risks which may not eventuate. It pays for difficult subsurface work only when it is encountered and was not indicated in the logs. All this is long-standing, deliberately adopted procurement policy, expressed in the standard mandatory changed conditions clause and enforced by the courts and the administrative authorities on many occasions. United Contractors v. United States, supra, 368 F.2d at 599, 177 Ct.Cl. at 168; Kaiser Industries Corp. v. United States, supra; Joseph Meltzer, Inc. of N. J. v. United States, 77 F.Supp. 1018, 111 Ct.Cl. 389, 481 (1948); A. S. Horner Construction Co., ASBCA No. 5334, 59-2 BCA fl 2321. See Kendall, Changed Conditions as Misrepresentation in Government Construction Contracts, supra, 35 Geo.Wash.L. Rev. at 979-80, 981-82; Nash, Risk Allocation in Government Contracts, 34 Geo.Wash.L.Rev. 693, 701 (1966); Nash and Cibinic, Federal Procurement Law, ch. 15 (2d ed. 1969). Faithful execution of the policy requires that the promise in the changed conditions clause not be frustrated by an expansive concept of the duty of bidders to investigate the site. That duty, if not carefully limited, could force bidders to rely on their own investigations, lessen their reliance on logs in the contract and reintroduce the practice sought to be eradicated — the computation of bids on the basis of the bidders’ own investigations, with contingency elements often substituting for investigation. The changed conditions clause “makes it clear that bidders are to compute their bids, not upon the basis of their own preaward surveys or investigations, but upon the basis of what is indicated and shown in the specifications and on the drawings.” A. S. Horner Constr. Co., supra, 59-2 BCA at p. 10,-577. The clause “should induce the bidder not to consider such contingencies” as the latent or subsurface conditions, for which the Government has assumed responsibility. Kendall, Changed Conditions as Misrepresentation in Government Construction' Contracts, supra, 35 Geo.Wash.L.Rev. at 985. As a complement to the changed conditions clause, therefore, the standard Instructions to Bidders, in clause 2 (text in appendix), requires bidders only to ascertain such conditions as may be “readily determined by inspection and inquiry, such as the location, accessibility and general character of the site.” Even before the time of the modern changed conditions clause, in the misrepresentation cases, the courts held that the bidders were entitled to rely on logs in the contract, despite contract clauses requiring bidders to investigate the site and decide for themselves. United States v. Atlantic Dredging Co., 253 U.S. 1, 11, 40 S.Ct. 423, 64 L.Ed. 735 (1920). “If the government wished to leave the matter open to the independent investigation of the claimants, it might easily have omitted the specification as to the character of the filling back of the dam.” Hollerbach v. United States, 233 U.S. 165, 172, 34 S.Ct. 553, 556, 58 L.Ed. 898 (1914). In the cases arising under the modern changed conditions clause, caution continues to be observed that the duty to make an inspection of the site does not negate the changed conditions clause by putting the contractor at peril to discover hidden subsurface conditions or those beyond the limits of an inspection appropriate to the time available. Farnsworth & Chambers Co. v. United States, 346 F.2d 577, 580-581, 171 Ct.Cl. 30, 35 (1965); Fehlhaber Corp. v. United States, 151 F.Supp. 817, 825, 138 Ct.Cl. 571, 584, cert. denied, 355 U.S. 877, 78 S.Ct. 141, 2 L.Ed.2d 108 (1957); Walsh Bros. v. United States, 69 F.Supp. 125, 127, 107 Ct.Cl. 627, 630, 644, (1947); Frederick Snare Corp. v. Maine-New Hampshire Interstate Bridge Authority, 41 F.Supp. 638, 645 (D.N.H.1941). The contractor is unable to rely on contract indications of the subsurface only where relatively simple inquiries might have revealed contrary conditions. When, for instance, logs in the contract show no water, as in the instant case, he need not seek out experts who may tell him of the possibility of subsurface water. Woodcrest Constr. Co. v. United States, 408 F.2d 406, 409-411, 187 Ct.Cl. 249, 254-256 (1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2164, 26 L.Ed.2d 542 (1970). Particular protection is given by the courts to the right of bidders to rely upon drill hole data in the contract, recognized to be the “most reliable and the most specific indicator” of subsurface conditions. United Contractors v. United States, supra, 368 F.2d at 598, 177 Ct.Cl. at 166-167; Woodcrest Constr. Co. v. United States, supra. Even unmistakable contract language in which the Government seeks to disclaim responsibility for drill hole data does not lessen the right of reliance. The decisions reject, as in conflict with the changed conditions clause, a “standard mandatory clause of broad application,” the variety of such disclaimers of responsibility — that the logs are not guaranteed, not representations, that the bidder is urged to draw his own conclusions. United Contractors v. United States, supra, 368 F.2d at 598, 177 Ct.Cl. at 165-166; Fehlhaber Corp. v. United States, supra, 151 F.Supp. at 825, 138 Ct.Cl. at 583-585; Kaiser Industries Corp. v. United States, supra, 340 F.2d at 329-330, 169 Ct.Cl. at 322-324; A.S. Horner Constr. Co., supra. See Kendall, Changed Conditions as Misrepresentation in Government Construction Contracts, supra, 35 Geo.Wash.L.Rev. at 985-987. Under the foregoing principles, the plaintiff and the other bidders had the right to rely on the indications of the subsurface in logs put in the contract for their use and reliance. The Government’s witnesses agreed that the logs were sufficient, if meager, for conclusions to be drawn by the designer, and the designer himself testified that he had thought them sufficient basis on which to design and locate the pier foundations. His knowledge of the alluvial condition cannot be charged to plaintiff. The duty of the bidders to investigate the site did not require them to conduct geological or other technical investigations, costly and perhaps impossible in the 20 days available, from which they might have learned of an alluvial condition of the riverbed. Woodcrest Constr. Co. v. United States, supra. The Instructions to Bidders directed that they investigate the site to learn what was “readily determined by inspection and inquiry.” Plaintiff fulfilled this duty in the visits its representatives made to the site. Without notice of the alluvial condition or reason to doubt the logs, plaintiff and the other bidders had every reason and right to rely on the clear indications in the logs of the nature of the subsurface. It is held that the indications in the logs were unaffected by any alluvial condition, and within the meaning of the changed conditions clause indicated that stable and relatively impermeable materials would be encountered in excavating for the footings for piers 4, 5 and 6. 5. Confirmatory indications of an impermeable subsurface permitting excavation in the dry. The design details and directions claimed to confirm the indications of an impermeable subsurface are (1) a note on the plans attached to the contract directing that: “All concrete to be Class ‘A’ except in piers which shall be Class ‘B.’ All concrete shall be placed in the dry”; and (2) the omission from the contract documents of any provision for a concrete seal or for the class of concrete of which seals are made. By specifying that all concrete should be standard grades, and omitting mention of a seal or of seal class concrete from the contract documents, plaintiff contends, seals were definitely excluded from the design of the bridge. The net effect, plaintiff continues, of such a direction to pour concrete in the dry, without the use of a seal, is a clear indication that the subsurface to be encountered would be sufficiently impermeable to permit the dewatering of the cofferdam by pumping, without the use of a seal. So, plaintiff concludes, it was led to believe that it could both excavate and pour in the dry, without a seal, which, as has appeared above, was impossible because of the excess water encountered. Defendant responds, as the Board held, that the direction to pour in the dry does not mean or require that the contractor should excavate in the dry. The plaintiff’s rejoinder is that the direction to pour in the dry, without the use of a seal, signifies an ability to excavate in the dry, for these reasons: Concrete for foundations is poured, of course, following excavation. If a contractor has been able to excavate in the dry he will pour in the dry, without need for a seal. During excavation, if he will be able to pour in the dry, he will excavate in the dry. No contractor able to dewater without a seal would postpone it until pouring, and meantime excavate in the wet, especially here, where rocks were to be excavated in a 50-foot depth. (While there was testimony on the advantages in some circumstances of excavation in the wet, the Government admitted before the Board that excavation in the dry would have been easier in this project.) The prerequisite for both excavation in the dry and pouring in the dry is the ability to dewater by pumping alone, which, in turn, depends on a subsurface relatively impermeable to the inflow of water, limiting the water to an amount within the capacity of pumps. If, therefore, dewatering without a seal is possible, it can be done for both purposes, excavation and pouring in the dry. It follows that a contractor to whom it is indicated that the subsurface is sufficiently impermeable so that he will be able to pour in the dry without the use of a seal, understands that he will be able to dewater while excavating and thus excavate in the dry. In sum, a direction to pour in the dry, without a seal, necessarily means the ability to excavate in the dry, and it is immaterial that the contract did not require or direct excavation in the dry. The pouring of the foundation concrete in the dry, which was explicitly directed, is, taken alone, not the crux of the matter. Standard concrete can be poured only in the dry. The crux is that the direction to pour in the dry was coupled with a definite exclusion of a seal and of seal class concrete. The exclusion indicated the designer’s expectation that the contractor would be able, by virtue of the nature of the subsurface, to dewater by pumping alone, without a seal, and thus that he could both excavate in the dry and pour in the dry. In a further effort to support the Board’s decision that pouring in the dry has no necessary relationship to excavation in the dry, the Government argues that “the conclusion is inescapable from the record that plaintiff excavated for piers 5 and 6 in the wet and poured its pier concrete in the dry.” The statement is true enough, if overcondensed. With the added facts of the seals, it is essentially plaintiff’s complaint. At pier 5, as is recounted in the Description and Reason for Change Order No. 17, plaintiff began excavation in the dry, abandoned it when pumping could not empty the cofferdam of excessive water, continued excavation in the wet, and when the excavation reached bottom, poured the seal ordered by the change order, and only then was able to pour concrete in the dry. At pier 6, it is true enough that plaintiff excavated in the wet and poured in the dry. Again, the omitted fact of the intervening seal is all-important. Plaintiff was able to pour in the dry only after pouring a seal. The seal, a specific remedy for a subs