Site Investigation

[alexreb]

I need to determine to if contractor should be responsible for a construction failure under a performace specification. On p. 517 of Cibinic and Nash's Administration of Government Contracts (4th Ed.), the authors state that a contractor may have an "elevated duty" in investigating subsurface conditions and they reference the below ASBCA case:

See Pitt-Des Moines, Inc., ASBCA 42838, 96-1 BCA 27,941 (assumption of design responsibility imposes a greater duty on contractor to conduct a site investigation

In my case, the contractor was to build an earthen levee to contain dredge material (marsh creation project). The specification for the levee was a performance specification. It required the contractor to determine "...parameters such as top width, side slopes and berm width to ensure that the hydraulically placed material remains contained during the placement operations." Clause 52.236-3, Site Investigations and Conditions Affecting the Work was included in the contract. Clasue 52.236-4, Physical Data, was also included in the contract and made a geotechnical report and other geotechnical info available for viewing at our office (contractor did not view the available geotechnical report/information prior to bidding).

Contractor was unable to build the levee and claimed defective specifications due to impossibility. Government rejected this notiion and felt the contractor's chosen means and methods contributed to the failures. Contractor hired a geotechnical consultant who reported that the levee construction failure was due to unsuitable soils. The consultant's report also stated that the government failed to perform a load bearing analysis that would have shown soils were to weak to support the planned levee. The government engineers agreed that a bearing analysis would have been beneficial, but still felt it was possible for levee to be built if contractor would have used other means and methods during construction, e.g., using staged construction, mainting a sutable berm at base of levee, and limiting the depth of cut during excavation. Contractor disagreed with government engineers

The geotechnial consultant used information from the geotechnical report referenced in the Physical Data clause to perform the bearing analysis. That in itself shows that the information for the bearing analysis was available to bidders. Because of the Pitt-Des Moines decsion (which I haven't been able to get a copy of yet), it seems plausible to me that the contractor may should have been expected to examine the geotechnical report and other available geotechnical information, and make their own determination about the suitability of the soils. However, I can see the other side of the argument that says a contractor need only make a "reasonable" investigation of the site and available data and they do not need to perform their own testing to determine if site conditions are suitable (discussion on pp 516-520, Cibinic and Nash, Administration of Government Contracts, 4th Ed).

This is my first time dealing with a site investigation issue under a performance spec and I'm not really sure how to apply the higher level requirement. Could someone point me to some references on the subject or shed a little light on the subject?

Thanks.

[joel hoffman]

I need to determine to if contractor should be responsible for a construction failure under a performace specification...

...This is my first time dealing with a site investigation issue under a performance spec and I'm not really sure how to apply the higher level requirement. Could someone point me to some references on the subject or shed a little light on the subject?

Thanks.

Alex, inasmuch as this is a very technical issue, the answer may depend upon expert opinions from other geotechnical engineers as to whether or not the subsurface conditions made it technically impossible or economically impractical to construct a levee. The contractor may bear some responsibility if it failed to take any of the known conditions into account when preparing a proposal or bid. The contract apparently did make the contractor responsible for the design of the levee as well as determining the proper construction techniques - assuming that the levee can be built. The mere fact that it cant be built for the contract price doesn't carry much weight, particularly where the contractor failed to take the conditions described in the geo-tech report into consideration.

But one still has to determine if the structure could be built. Also, we don't know the contract price in comparison with other bidders/proposal/estimate, the basis of award, what level of design was expected from the contractor, whether the offered price should have raised suspicions, etc.

[alexreb]

Award was made from sealed bidding (price alone). Contractor's CY price for levee construction was highest of all 6 bidders (approximately 20% higher than the next lowest price and 200% higher than the lowest bid, but about 22% lower than the government estimate). Contractor subcontracted for all the levee construction work. However, the subcontractor that the contractor originally intended to use for the work was not the same sub that contractor actually used during project (same for dredging work, too). I haven't requested any info from contractor pertaining to their site investigation activities, but the subcontractor that performed the work did not attend the site showing and was not listed on the IVL (FBO).

We are having another geotech firm analyze the dike construction problem to determine if contractor's claims are true, as well as provide their opinion about constructibility (contractor also claiming they depleted all available earthen material attempting to build the levee). Also, I had one of our engineers contact their counterparts with the Corps and the State, who both have been invovled in this type work. The Corps has confirmed that they've never ran a bearing analysis for their projects. Still waiting on the State.

I'm glad you mentioned that not being able to build at contract price doesn't carry much weight in such matters. After the levee construction failure occurred, the contractor stated that staged construction was not an option because it would have increased the cost of levee construction, as well as the contract performance time. However, contractor chose to use an 18" dredge, while contract allowed up to a 24" dredge. From my engineer's calculations (using a corps dredging program), it would take twice the time using an 18" dredge as it would to use a 24" dredge. My point being that additional levee construction time would have been available if a larger dredge was selected.

Really appreciate your comments.