UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
Decided: August 24, 1988.
THE UNITED STATES, APPELLANT,
GUY F. ATKINSON COMPANY, APPELLEE
MICHEL, Circuit Judge, dissenting.
I respectfully dissent. The board found that "[t]he physical properties of materials classified as 'rock' were not set forth in the contract documents." The board further found that the contract documents were "silent" as to whether the terms "sandstone" and "shale" were being used in the geologic sense or in the engineering sense. Additionally, the contract documents contained conflicting elevations at which "rock" was likely to be found. In my view, if the contract documents were silent or ambiguous on the definition of rock, the properties of rock, the quantity of rock, and the elevation of the rock to be excavated, the contract documents contained patent ambiguities which should have prompted Guy G. Atkinson Company (GFA) to inquire before bidding so as to resolve the ambiguities. See Gelco Builders & Burjay Construction Corp. v. United States, 369 F.2d 992 (Ct. Cl. 1966); Cherry Hill Sand & Gravel Co. v. United States, 8 Cl. Ct. 757 (1985).
Actually, since the government had estimated in the bid documents that there would be 38,000 cubic yards of rock excavation, it should have been clear how the government was interpreting rock and at what elevation the government expected such rock to be encountered. As the board noted, the cross section drawings accompanying the bid documents*fn* depicted the upper three strata at the site as various formations of interlayered and stratified sand, silt, and clay, which indicate "overburden," not rock. The cross sections further showed the "top of rock" as a stratum described as "Shale I," at expected Elevations ranging from -25 to -32. However, although finding that the boring logs in the area of the tailrace canal excavation "provided insufficient information from which the quantity of rock excavation could be determined," the board also found that the only four borings in the tailrace canal area encountered refusal (impenetrability due to hardness) between Elevations .6 and . Finally, the board found that GFA had concluded, based on those four borings, that all underlying material "was payable as rock excavation." At the very least, the discrepancy between the four borings in the tailrace canal area indicating rock at elevations near and the cross sections of the geologically similar adjacent area indicating rock near Elevation -25 imposed a duty on GFA to recognize the patent ambiguity. It should have inquired as to the definition of and expected location of "rock" as it affected excavation payment quantities. Because it did not, GFA cannot, in my view, prevail. I therefore dissent.