NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.


                                           2018 VT 130

                                          No. 2017-436

W.M. Schultz Construction, Inc.                                 Supreme Court

                                                                On Appeal from
   v.                                                           Transportation Board


Vermont Agency of Transportation                                May Term, 2018


Vanessa Kittell, Chair

William Alexander Fead of Fead Construction Law, PLC, South Burlington, and John W. Dreste
 of Ernstrom & Dreste, LLP, Rochester, New York, for Plaintiff-Appellee.

Thomas J. Donovan, Attorney General, Eleanor L.P. Spottswood and Toni Hamburg
 Clithero, Assistant Attorneys General, Montpelier, for Defendant-Appellant.


PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.


        ¶ 1.   SKOGLUND, J. The Vermont Agency of Transportation (VTrans) appeals from

the Transportation Board’s order granting judgment to W.M. Schultz Construction, Inc. in this

contract dispute. The Board concluded that Schultz encountered “differing site conditions” in

carrying out its bridge-construction project and that it was entitled to an equitable adjustment for

costs it incurred as a result. VTrans appeals, arguing that the Board misread the contract materials

and otherwise erred in granting judgment to Schultz. We affirm.

                                             I. Facts

        ¶ 2.   The record indicates the following. Schultz entered into a contract with VTrans in

December 2013 to replace four bridges destroyed by Tropical Storm Irene. Three bridges were
completed without incident. This dispute concerns the fourth bridge, referred to as “Bridge #19.”

The Bridge #19 project involved the construction of a single-span steel-girder bridge over the

White River in Rochester, Vermont. The west abutment was to be placed on a deep pile foundation

and the east abutment (Abutment #2) was to be placed on ledge.1 The work was to begin in April

2014 and be completed in a single construction season.

          ¶ 3.   After engaging in exploratory drilling, Schultz discovered what it considered

“differing site conditions,” i.e., subsurface physical conditions that were materially different than

those described in the contract plans and specifications. Schultz’s claim concerned the elevation

of the subsurface bedrock or ledge associated with Abutment #2. According to Schultz, the

assumed rock elevation of 802.5 feet for the bottom of the bridge footing as shown on VTrans’

plans was in fact drastically irregular and much lower in some areas than shown. Schultz argued

that the uneven elevation required it to change the specific means and methods required for the

installation of a cofferdam from what had been originally estimated in its bid pricing—a sandbag

style cofferdam—to a steel-sheet pile cofferdam.2

          ¶ 4.   Schultz filed a claim under the contract’s differing-site-conditions provision, which

states:

                 104.08 DIFFERING SITE CONDITIONS.

                  (a) During the progress of the work, if subsurface or latent physical
                 conditions are encountered at the site differing materially from those
                 specified in the Contract or if unknown physical conditions of an
                 unusual nature, differing materially from those ordinarily
                 encountered and generally recognized as inherent in the work
                 provided for in the Contract, are encountered at the site, the party
                 discovering such conditions shall promptly notify the other party in


          1
           “Bedrock (Ledge)” is defined in the bid documents as “Rock in its native location of
indefinite thickness.”

         A “cofferdam” is “a watertight enclosure from which water is pumped to expose the
          2

bottom of a body of water and permit construction.” Webster’s Ninth New Collegiate Dictionary
256 (1985).
                                                   2
               writing of the specific differing conditions before they are disturbed
               and before the affected work is performed.

                 (b) Upon written notification, the Engineer will investigate to
               determine if the conditions materially differ and will cause an
               increase or decrease in the cost or time required for the performance
               of any work under the Contract. The Contractor will be notified of
               the Engineer’s determination, whether or not an adjustment of the
               Contract is warranted. If an adjustment is warranted, the Contract
               will be modified in writing accordingly. Any adjustment made will
               exclude loss of anticipated profits.

                (c) No Contract adjustment that results in a benefit to the
               Contractor will be allowed unless the Contractor has provided the
               required written notice.

                (d) No Contract adjustment will be allowed under this clause for
               any effects caused on unchanged work.

As VTrans notes, this project was funded in part with federal aid and the inclusion of this

standardized differing-site-conditions provision was required under 23 C.F.R. § 635.109, with the

exception of subdivision (d), which is optional.3

       ¶ 5.    “The purpose of the Differing Site Conditions clause is to allow contractors to

submit more accurate bids by eliminating the need for contractors to inflate their bids to account

for contingencies that may not occur.” H.B. Mac, Inc. v. United States, 153 F.3d 1338, 1343 (Fed.

Cir. 1998). This 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 on the
               drawings. The clause should induce the bidder not to consider such
               contingencies as the latent or subsurface conditions, for which the
               Government has assumed responsibility.

Foster Constr. C.A. v. United States, 435 F.2d 873, 887 (Ct. Cl. 1970) (quotations omitted)

(discussing history and purpose of differing-site-conditions clause).




       3
        The type of claim at issue here is referred to as a Type I differing-site-conditions claim.
See Renda Marine, Inc. v. United States, 509 F.3d 1372, 1376 (Fed. Cir. 2007).
                                                    3
                               II. Legal Standard Employed Below

       ¶ 6.    Both VTrans and the Board evaluated Schultz’s differing-site-conditions claim

under the so-called Stuyvesant test. To be entitled to an equitable adjustment under this test, a

contractor must prove by a preponderance of the evidence that:

                 (1) “the conditions indicated in the contract differ materially from
               those it encounters during performance”;

                (2) “[t]he conditions actually encountered” were “reasonably
               unforeseeable based on all the information available to the
               contractor at the time of bidding”;

                (3) “it reasonably relied upon its interpretation of the contract and
               contract-related documents”; and

                 (4) “it was damaged as a result of the material variation between
               the expected and encountered conditions.”

Stuyvesant Dredging Co. v. United States, 834 F.2d 1576, 1581 (Fed. Cir. 1987) (citations and

quotations omitted).4

       ¶ 7.    The first Stuyvesant element is a “threshold” question—the contract must contain

“some identification of the conditions to be encountered at the site.” Renda Marine, 509 F.3d at

1376. While there need not be “express representations as to the nature of conditions, . . . at least

insofar as subsurface or latent conditions are concerned, there must be reasonably plain or positive

indications in the bid information or contract documents that such subsurface conditions would be

otherwise than actually found in contract performance.” Pac. Alaska Contractors, Inc. v. United

States, 436 F.2d 461, 469 (Ct. Cl. 1971); see also Stuyvesant, 834 F.2d at 1581 (outlining same

standard).




       4
          The Board found this test appropriate and the parties agreed that it applied. The Board
noted that it would reach the same result if it analyzed Schultz’s claim directly under the contract
language.
                                                 4
                                     III. Agency Decisions

       ¶ 8.    Applying this test, VTrans’ Construction Engineer denied Schultz’s claim. He

found no material difference between the conditions described in the contract and those

encountered by Schultz at Abutment #2, and he concluded that the actual conditions were

reasonably foreseeable.

       ¶ 9.    The Chief Engineer (CE) reached a similar conclusion. He determined that the

contract documents did not reasonably convey an expectation that the level of ledge for the bottom

of the footing at Abutment #2 was approximately 802 feet. He found that only two plan sheets

referred to the elevation of ledge at Abutment #2. The first, Plan Sheet 190, indicated that the

existing ledge was “approximately” 802 feet. The CE found that the second, Plan Sheet 220,

assumed a similar ledge elevation; the CE concluded, however, that this sheet was not intended to

address the design details for Abutment #2. Plan Sheet 179, which included a drawing entitled

“Cofferdam and Earthwork Section, Not to Scale,” did not refer to the elevation of the ledge, and

the CE found that it conveyed the designer’s expectation that the ledge around Abutment #2 sloped

downward, both before and after the section upon which the footing was to be placed. The CE

also cited soil borings data that had been provided to bidders, concluding that this information

should have informed Schultz that the ledge at Abutment #2 had a substantial slope toward the

west. Additionally, he cited the significantly different bid prices for the cofferdam as evidence

that Schultz failed to adequately estimate the cost of constructing Abutment #2. For these and

other reasons, the CE rejected Schultz’s claim.

                                       IV. Board Decision

       ¶ 10.   Schultz appealed to the Transportation Board, a body with “specialized expertise

concerning industry norms, the doctrines that have arisen around them, and the highly fact-specific

nature of the issues and disputes typically arising from construction contracts.” Luck Bros., Inc.

v. Agency of Transp., 2014 VT 59, ¶ 25, 196 Vt. 584, 99 A.3d 997; see also 19 V.S.A. § 3 (stating

                                                  5
that, to extent possible, Board should be composed of “members whose interests and expertise lie

in various areas of the transportation field”). The Board conducts an “essentially de novo review”

of the agency’s decision. Luck Bros., 2014 VT 59, ¶ 27 (“Review before the Transportation Board,

although it does not necessarily involve a full-blown hearing and does not treat the Agency’s

decision as if it did not exist, is essentially de novo review.”). “Because the Agency evaluation of

contract claims is an internal, informal dispute-resolution process that does not require any due

process protections, the Board owes no deference to an Agency decision to reject a contract claim,

beyond the persuasive value of the decision.” Id. ¶ 24.

       ¶ 11.   Following a June 2017 evidentiary hearing, the Board granted judgment to Schultz.

With respect to the first element of the Stuyvesant test, the Board found that the bid documents

repeatedly stated that the approximate elevation of existing ledge was 802 feet and they did not

state that subsurface conditions were unknown, could vary, or were sloped. It found that Plan

Sheets 220, 225, 226, and 227 depicted elevations drawn to scale using the defined symbol for

exposed ledge, and each represented, sometimes in multiple places, existing ledge elevation at

approximately 802.5 feet at Abutment #2.

       ¶ 12.   Importantly, the Board continued, the bid documents described the prior bridge,

which had been built in 1974, and stated that the footing for the then-existing Abutment #2 was

poured directly on ledge. That description was presented as “Existing Bridge Data,” a known fact.

The new Abutment #2 was to be located largely in the same location as the prior Abutment #2.

Nothing indicated that the ledge on which the existing abutment footer had been poured was at an

elevation that differed from the bid documents’ several other ledge descriptions and data.

Additionally, the two soil borings closest to, and directly behind, the preexisting 1974 abutment

showed ledge rock elevations of 802.6 feet and 801.2 feet.

       ¶ 13.   The Board rejected VTrans’ arguments that the bid documents “did not indicate

any actual depth of ledge” or that they clearly marked the height of ledge as “approximate” or

                                                 6
“elevation varies.” The Board found these generic qualifications unconvincing. It reasoned that

while such qualifications might require a contractor to exercise reasonable caution or prudence,

they did not override the basic purpose of the bid documents, which was to indicate conditions

known (and unknown) about the work site.

       ¶ 14.   The Board found no project drawing specifying that the existing ledge was

anticipated to dramatically slope, dramatically vary, or dramatically drop-off from the approximate

802.5-foot elevation indicated by the drawings. Additionally, it found that no evidence had been

presented to prospective bidders that the preexisting 1974 Abutment #2 was not founded on

existing ledge as depicted in Plan Sheet 189. It determined that no drawing indicated anything

other than that bidders should anticipate the existing ledge at Abutment #2 to be at an elevation of

approximately 801 to 802.5 feet.

       ¶ 15.   Additionally, the Board explained that a subfooting was generally required when

ledge was at a lower elevation. Here, no subfooting was depicted in the drawings for Bridge #19,

although a subfooting was depicted for another bridge (Bridge #13) that was part of the same

contract. During the pre-bid meeting, bidding contractors, including Schultz, were advised to

expect that the elevation of the rock ledge would vary at Bridge #13 but they were not given a

similar warning for Bridge #19. The documents for Bridge #19 did not include a pay item for

concrete for a sub-footing, moreover, while the contract documents for Bridge #13 did.

       ¶ 16.   The Board also found that ordinary low water within the White River was

represented on Plan Sheet 175 as being a depth of 1.5 feet, while ordinary high water was

represented as being a depth of 11 feet. The ordinary low water measurement of 1.5 feet was one

of the factors that convinced Schultz to choose a sandbag cofferdam for water control. Schultz

retained TAW Associates to design a water control plan in accordance with its plan. The sandbag

cofferdam was expected to work so long as the rock elevation was no lower than about three feet



                                                 7
below 802 feet. VTrans accepted Schultz’s initial water control plan and did not comment or raise

concerns that the design relied on a rock elevation of approximately 802 feet.

       ¶ 17.   The actual conditions were undisputed. The ledge sloped steeply just a few feet

from the boreholes and it varied in elevation by up to ten feet from 802.5 feet to 793 feet in

elevation. Contrary to the bid documents, moreover, the footing for Abutment #2 for the prior

bridge had not been poured on exposed ledge but was instead suspended over soil. The Board

further found that the actual conditions required Schultz to use different means and methods than

those it had planned to use in response to the bid documents. A different, more extensive and

expensive sheet piling cofferdam was required in lieu of the sandbag cofferdam. The Board found

that pinning the new abutment to the actual location of the ledge required significantly more work

and a subfooting.

       ¶ 18.   Turning to the remaining Stuyvesant elements, the Board concluded that the actual

conditions were not reasonably foreseeable and that Schultz reasonably interpreted the bid

documents to allow reliance on the indicated conditions. In reaching its conclusion, the Board

cited the testimony of Mr. Waite, a professional engineer and the principal of TAW Associates.

Mr. Waite designed the cofferdam for Schultz.        In doing so, he undertook an independent

engineering review, which involved reviewing the contract documents. Mr. Waite stated that

determining the presence of ledge around Abutment #2 was “a governing factor” in designing the

cofferdam.

       ¶ 19.   Mr. Waite explained in detail the process by which he concluded, based on the bid

documents, that the elevation of ledge at Abutment #2 was approximately 802 feet. He began by

looking at Plan Sheet 190 to obtain a profile of the bridge. He then looked at the two closest

borings to Abutment #2 because they were “right dead against the back of the existing footing”

and “coincide[d] pretty much with the new footing as well.” These two borings varied somewhat,

which indicated to him that the ledge might slope along the length of the footing. Mr. Waite

                                                8
therefore looked at Plan Sheet 220, which depicted the cross-sections of the channel, to look for

any variation in the ledge in the transverse direction of the bridge. Mr. Waite subsequently

reviewed the section of the abutment, wondering about the sloping of the ledge from the back of

the footing to the front. These documents, Plan Sheets 225-227, again showed a relatively slight

slope from the back toward the front. Considering the borings with the cross-sections gave Mr.

Waite the impression that it was relatively level at about an 802-foot elevation along the length of

the abutment.

       ¶ 20.    Mr. Waite then looked at the “existing bridge data,” which stated that Abutment #2

was constructed in 1974 as spread footing on ledge. If the spread footing was constructed on ledge,

he reasoned, then ledge was exposed at one time and VTrans had knowledge that the ledge was

relatively level under this footing. Otherwise, Mr. Waite stated, it would have been shown

differently. Based on this information, Mr. Waite concluded that the ledge was at an elevation of

approximately 802 feet, and he used this elevation as the basis for the design of the cofferdam.

Mr. Waite testified that he believed his conclusion was reasonable. He provided additional

testimony about the changes required to the cofferdam and other issues. VTrans did not object to

any of his testimony.

       ¶ 21.    The Board found that Mr. Waite provided an expert opinion that a reasonable

engineer would exercise the same judgment as Schultz did here and that it was reasonable to

conclude that the approximate bedrock elevation would be 802 feet. The Board found this

evidence bolstered by the absence of drawings and pay items for Abutment #2’s subfooting.          It

reiterated that subfootings generally were represented in drawings and pay items when it was

anticipated that they were needed. While there was a plan note in this case stating that a subfooting

would be needed if the ledge was more than one foot below the footing’s design bottom, there

were no drawings or pay items for Bridge #19 subfootings. Instead, the drawings indicated that

ledge was at 802.5 feet, a height where a subfooter would not be needed. In short, the Board found

                                                 9
the possible need for a subfooting reflected in the plan note was an apparently generic statement

that was, at best, ambiguous.    It determined that the possible need for a subfooter could not

reasonably be read to show that the ledge elevation was inconsistent with the repeated indications.

       ¶ 22.   The Board was also persuaded by the extensive experience of Schultz’s principal,

Mr. Schultz, in estimating and bidding on projects. It found Schultz’s reliance on a well-developed

system for preparing bids was further evidence that it acted reasonably. The Board thus concluded

that the actual conditions were reasonably unforeseeable and that Schultz reasonably interpreted

and relied on the bid documents.       It found Schultz’s actions and judgment to be those of a

“reasonable and prudent” contractor.

       ¶ 23.   Finally, the Board found that Schultz was “damaged as a result of the material

variation between the expected and the encountered conditions.” Stuyvesant, 834 F.2d at 1581.

The differing conditions required additional work for which Schultz was not paid and required a

longer timeframe to complete the project, which resulted in the assessment of liquidated damages.

The Board found that VTrans was not entitled to any liquidated damages for the delay in

completing the project because the additional time was due to differing conditions and the time

was reasonable and should have been allowed.

       ¶ 24.   Schultz claimed further damages of nearly $600,000 representing the costs incurred

because of the differing conditions. It presented documentary evidence and testimony to support

this claim. VTrans did not present any testimony or other supplemental evidence taking issue with

Schultz’s claimed costs. The Board acknowledged that VTrans’ position was the same as that

detailed in the agency decisions. The Board reviewed those decisions and the record on which

they were based. It found that there did not appear to be any evidence in the record developed by

VTrans assessing or disputing the specific costs Schultz sought, beyond the claim that the

conditions were foreseeable. The Board found that the differing site conditions required Schultz



                                                10
to incur additional costs of $589,782.09 and that Schultz was entitled to damages in this amount.

This appeal followed.

                                    V. Arguments on Appeal

                                      A. Preliminary Issues

         ¶ 25.   We first address Schultz’s assertion that VTrans lacks standing to pursue this

appeal. Schultz asserts that allowing VTrans to appeal would “frustrate the purpose of the rule

requiring exhaustion of administrative remedies.” Schultz also assumes that this is a “contested

case” under the Vermont Adminstrative Procedure Act and asserts that VTrans has no right to

appeal because it does not qualify as a “person” under 3 V.S.A. § 815(a). See id. (“A person who

has exhausted all administrative remedies available within the agency and who is aggrieved by a

final decision in any contested case may appeal that decision to the Supreme Court, unless some

other court is expressly provided by law.”).

         ¶ 26.   We reject these arguments. The pertinent statute provides, with an exception not

relevant here, that “final orders of the Board may be reviewed on the record by the Supreme

Court.” 19 V.S.A. § 5(c). “It has long been recognized [that] statutes giving and regulating the

right of appeal are remedial in nature and should receive a liberal construction in furtherance of

the right of appeal.” In re Preseault, 130 Vt. 343, 346, 292 A.2d 832, 834 (1972). The plain

language of § 5(c) does not limit who may appeal, and liberally construing this provision, we

conclude that it allows any party properly before the Board, including VTrans, to appeal to this

Court.

         ¶ 27.   We also reject VTrans’ assertion that the Board “improperly ignored the

administrative record before it” contrary to the process required by Luck Bros., 2014 VT 59, ¶ 27.

The record does not support this contention. It is evident that the Board reviewed the contract

materials and the agency decisions. The Board owed no deference to the agency’s decisions,

however, and it was not obligated to “discuss, explain, or refute” the Chief Engineer’s analysis as

                                                11
VTrans posits. See id. ¶ 24 (“[T]he Board owes no deference to an Agency decision to reject a

contract claim, beyond the persuasive value of the decision.”). The Board obviously was not

persuaded by the agency’s decision and it was entitled to draw its own conclusions from the

evidence. Its review was consistent with the process described in Luck Bros.

       ¶ 28.   Finally, we need not decide if, as VTrans argues, the Board erred by stating that

“[t]he hearing and evidence admitted at the hearing is governed by the Vermont Administrative

Procedure Act, 3 V.S.A. §§ 809-812.” VTrans maintains that the provisions cited by the Board

describe the procedures for conducting a contested case, and a contested case is one in which a

hearing is required by law. VTrans asserts that there is nothing in Vermont law that requires the

Board here to hold a hearing to review an agency decision. We find it unnecessary to decide this

issue because VTrans identifies no particular harm that it suffered as a result of the Board’s

approach and we find none.

                                      B. Standard of Review

       ¶ 29.   We thus turn to the merits of the Board’s decision, beginning with our standard of

review. Both parties appear to agree—to some degree—that it is appropriate to use the same

standard of review applied by the U.S. Court of Federal Claims and the U.S. Court of Appeals for

the Federal Circuit in evaluating similar claims.

       ¶ 30.   The federal courts consider the first element of the Stuyvesant test—whether the

contract contained some identification of the conditions to be encountered at the site—as

presenting “a question of contract interpretation reviewed de novo on appeal.” Int’l Tech. Corp.

v. Winter, 523 F.3d 1341, 1348-49 (Fed. Cir. 2008). “A proper technique of contract interpretation

on this problem is for the court to place itself into the shoes of a reasonable and prudent contractor

and decide how such a contractor would act in appellant’s situation.” P.J. Maffei Bldg. Wrecking

Corp. v. United States, 732 F.2d 913, 917 (Fed. Cir. 1984) (quotation omitted). The remaining



                                                 12
elements of the Stuyvesant test present questions of fact “reviewed under a deferential standard.”

Int’l Tech. Corp., 523 F.3d at 1349.

       ¶ 31.   Schultz argues that additional deference to the Board’s legal conclusions may be

warranted here given the Board’s “specialized expertise concerning industry norms, the doctrines

that have arisen around them, and the highly fact-specific nature of the issues and disputes typically

arising from construction contracts.” Luck Bros., 2014 VT 59, ¶ 25. VTrans, by contrast, argues

that this Court should ensure that all contracts are interpreted consistently as a matter of law and

urges us to follow the federal government’s lead in this area.

       ¶ 32.   We have held that “[a] decision of an administrative board is entitled to great weight

with respect to matters within its particular area of expertise.” In re Tariff Filing of Green

Mountain Power Corp., 138 Vt. 213, 215, 414 A.2d 1159, 1160 (1980). The federal courts are

similarly mindful that the agency board “has considerable experience and expertise in interpreting

Government contracts, and its interpretation is given careful consideration and great respect.”

HPI/GSA 3C, LLC v. Perry, 364 F.3d 1327, 1333 (Fed. Cir. 2004) (quotation omitted); see also

Lockheed Martin Corp. v. Walker, 149 F.3d 1377, 1379 (Fed. Cir. 1998) (“[T]he Board’s

determinations on issues of contract interpretation are reviewed de novo, although our review is

mindful of the Board’s specialist expertise.”); R.B. Wright Constr. Co. v. United States, 919 F.2d

1569, 1571 (Fed. Cir. 1990) (“Since contract interpretation is a question of law, the Board’s

interpretation is not binding upon us. But because of the Board’s expertise on questions of

government contracts, we give some weight to the Board’s interpretation of particular contractual

language.”). We find it appropriate to apply a similar standard here. Thus, our review of the first

Stuyvesant element is de novo but we are mindful of and give some weight to the Board’s

“specialized expertise.” Luck Bros., 2014 VT 59, ¶ 25.




                                                 13
                                        C. Stuyvesant Test

                                         1. First Element

       ¶ 33.   With this standard of review in mind, we first consider if there were “reasonably

plain or positive indications in the bid information or contract documents that such subsurface

conditions would be otherwise than actually found in contract performance.”            Pac. Alaska

Contractors, Inc., 436 F.2d at 469; see also Stuyvesant, 834 F.2d at 1581 (outlining same standard).

VTrans essentially reiterates the CE’s analysis in arguing that this standard is not satisfied. It

argues that the Board should have given greater weight to certain plan sheets and information and

less weight to other materials.

       ¶ 34.   More specifically, VTrans argues that the contract conveyed the variability of the

ledge elevation through the contract’s project notes, which provided for the possibility of a

subfooter; the inclusion of a way in which to calculate payment for excavating up to fifteen feet

below the design if necessary; and the use of the words “approximate” and “elevation varies” in

several plan sheets. VTrans also cites the soil borings, arguing that the data from all six borings

provided the best indication of substructure material. Additionally, VTrans cites Plan Sheet 212,

entitled “Abutment No. 2 Footing Masonry Plan,” arguing that this was the controlling document

because it used calculated dimensions rather than scaled dimensions and this document indicated,

at the bottom of the Abutment #2 footing, “el. varies.” VTrans asserts that the depictions of ledge

in Plan Sheets 220, 225, 226, and 227, using the symbol for ledge, were insufficient “to establish

indications on which the contractor could justifiably rely.” A.S. McGaughan Co. v. United States,

24 Cl. Ct. 659, 665 (1991). VTrans also challenges the Board’s reliance on Plan Sheets 189 and

238, which set forth the existing bridge data concerning the 1974 footer.5


       5
           Relying on cases that involve “patent ambiguities,” VTrans also asserts that if an
ambiguity existed in the contract, Schultz had a duty to inquire “regardless of the reasonableness
of the contractor’s interpretation.” Fortec Constructors v. United States, 760 F.2d 1288, 1291
(Fed. Cir. 1985). The present case does not involve a “patent ambiguity,” and assuming that this
                                                14
       ¶ 35.   As indicated above, the first element of the Stuyvesant test “is subject to de novo

review, based on how a reasonable contractor would interpret the contract documents as a whole.”

Int’l Tech. Corp., 523 F.3d at 1349. A “contractor does not need to show that its ‘interpretation is

the only reasonable one, but it does bear the burden of showing that its construction is at least a

reasonable reading.’ ” United Constructors, LLC v. United States, 95 Fed. Cl. 26, 37 (2010)

(alteration omitted) (quoting P.J. Maffei Bldg. Wrecking Corp., 732 F.2d at 917).

       ¶ 36.   We conclude that it was reasonable for Schultz to construe the contract as indicating

that the elevation of the bedrock at Abutment #2 was approximately 802.5 feet. While we do not

defer to the Board’s decision on this element, we agree with its analysis, particularly its focus on

the 1974 bridge, an issue that the Chief Engineer did not address. Like the Board, we find it

significant that the prior bridge was depicted in largely the same location as the proposed bridge

and that it showed the footing at Abutment #2 directly on ledge. The information provided about

the 1974 bridge shapes this case, and the soil borings and the various caveats and design

contingency language in the bid documents must be construed in light of these representations.

We reject the notion, moreover, that there was one “controlling” document.           In evaluating

Schultz’s claim, we consider the contract materials as a whole. Int’l Tech. Corp., 523 F.3d at 1350.

       ¶ 37.   VTrans fails to dissuade us of the importance of the information provided about the

1974 bridge. It asserts that the “Existing Bridge Data” notation, which stated that the prior

abutment was “spread footing on ledge,” did not necessarily mean that it rested entirely and

directly on bedrock without any subfooter. But this is not the question. The question here is how



argument was preserved, VTrans’ reliance on this doctrine is misplaced. Cf. id. (concluding that
contract was “patently ambiguous” because it provided no direction as to which of two rebar
schemes was required for project; patent ambiguity gave rise to “duty of inquiry, regardless of the
reasonableness of the contractor’s interpretation,” and court considered “trade standards and
practices of the relevant business community” to determine correct meaning of contract). The
question in this case is whether Schultz established its differing-site-conditions claim, including
whether it reasonably read the contract as making a representation as to the elevation of ledge at
Abutment #2.
                                                15
a reasonable contractor would construe the information provided. It was reasonable to read the

notation to mean what it said. This is particularly true given the drawings that portrayed the

existing bridge abutment footing as a level plateau with slopes on either side. Additionally, as the

Board observed, nothing in the contract materials indicated that the ledge on which the existing

abutment footer had been poured was at an elevation that differed from the bid documents’ several

other ledge descriptions and data. No subfooting was depicted in the drawings for Bridge #19,

moreover, and there was no pay item for concrete for a subfooting.

       ¶ 38.   Our conclusion is not undermined by the statement in the “Preliminary Information

Sheet,” under the heading “Existing Structure Information,” which reads, “Type of Material Under

Substructure: See Borings.” It is true, as VTrans posits, that bidders have the right “to rely upon

drill hole data in the contract, recognized to be the most reliable and the most specific indicator of

subsurface conditions.” Foster Constr. C.A., 435 F.2d at 888 (quotation omitted). Citing Renda

Marine, 509 F.3d at 1378, VTrans argues, that as a matter of course “all borings in a contract must

be reviewed for the most complete understanding of subsurface conditions, not just the borings in

the immediate area of concern.” This is not the holding of Renda Marine. Instead, the court there

considered the contract materials as a whole, including boring logs, and upheld a finding that

certain subsurface conditions (stiff clays) were foreseeable in the project area and should

reasonably have been anticipated. Id. The marine dredging contractor in Renda Marine had relied

upon two of five borings in the area to be dredged, but the two it relied upon “reflected subsurface

conditions at depths considerably below where [the contractor] would be required to do most of

its dredging.” Id. at 1377. “Under these circumstances,” the Court of Federal Claims found, “those

logs gave an incomplete account of the materials to be dredged . . . and [the contractor] should

have considered [the remaining] boring logs.” Id. The U.S. Court of Appeals for the Federal

Circuit upheld this finding, noting that the remaining borings were within the relevant area and



                                                 16
that an expert witness testified that it was unreasonable to rely only upon the two borings to the

exclusion of other borings in adjacent areas that provided additional information. Id. at 1378.

       ¶ 39.   In the instant case, Schultz reasonably construed the borings data in light of other

information—presented as a known fact—that the prior abutment was “spread footing on ledge.”

This interpretation was consistent with various plan sheets depicting the ledge at 802.5 feet. The

argument that Schultz should have discerned the deep slope from the borings data fails to account

for the fact that the existing bridge abutment footing was portrayed as a level plateau with slopes

on either side. Understood from the perspective of all of the other representations in the contract

materials, the borings data was consistent with Schultz’s reasonable expectations. We note that,

unlike the agency in Renda Marine, VTrans did not provide any expert testimony to support its

assertion that it was unreasonable under the circumstances of this case for Schultz to rely on the

two borings closest to the existing and proposed Abutment #2.

       ¶ 40.   We are equally unpersuaded by VTrans’ assertion that a reasonable contractor

could not rely on the various plan documents that depicted ledge, using the symbol for ledge, at

approximately 802.5 feet. According to VTrans, the documents had to depict bedrock in some

form and there is no conventional symbol for “possible ledge” or “ledge with uncertain contour.”

VTrans maintains that the depictions of ledge should not control over plan annotations and notes.

As with the existing bridge data, we find it reasonable for Schultz to have taken these plan sheets

at their face value and read them to represent the presence of ledge as depicted. It had no need to

“clarify” this straightforward depiction through reference to the plan notes.

       ¶ 41.   VTrans argues that this case is remarkably similar to Geary v. City of New Haven,

55 A. 584 (Conn. 1903). It largely relies on this case to support its argument that use of the word

“approximately” in labeling elevation conveys uncertainty about actual depth and that

contingencies included in a contract can convey uncertainty. See id. at 587.



                                                17
       ¶ 42.   We are unpersuaded. First, the Geary court was not interpreting a differing-site-

conditions clause or applying the Stuyvesant test; the contractor there assumed the risk of “any

unforeseen obstructions or difficulties which may be encountered in the prosecution of the work.”

Id. at 586. Viewing the contract materials here as a whole—including multiple plan sheets

depicting ledge at 802.5 feet and the 1974 bridge information—a reasonable contractor would not

view the use of the word “approximate” to convey that the ledge elevation could vary wildly from

what was represented. We are similarly unpersuaded that the various design contingencies in the

instant case conveyed that the ledge was not as it was represented to be in multiple plan sheets.

Cf. id. These caveats—including a statement that elevation could vary and the inclusion of a

method of payment for excavation up to fifteen feet below the design—must be considered through

the lens of “known information” provided to prospective bidders and in light of the contract

materials as a whole.

       ¶ 43.   We thus conclude that the contract here contained “reasonably plain or positive

indications” that the “subsurface conditions would be otherwise than actually found in contract

performance.” Pac. Alaska Contractors, Inc., 436 F.2d at 469.

                                2. Remaining Stuyvesant Elements

       ¶ 44.   VTrans next challenges the Board’s findings that “[t]he conditions actually

encountered” were “reasonably unforeseeable based on all the information available to the

contractor at the time of bidding” and that Schultz “reasonably relied upon its interpretation of the

contract and contract-related documents.”     Stuyvesant, 834 F.2d at 1581. VTrans repeats its

assertion that the Board failed to properly review the full record, an argument we rejected above.

VTrans also argues that the Board erroneously credited Mr. Waite as an expert after stating

repeatedly during the hearing that he was not an expert. It asserts that the Board’s determination

that the conditions were reasonably unforeseeable relies largely on Mr. Waite’s “expert opinion

that a reasonable engineer would exercise the same judgment as Schultz did here, and that it was

                                                 18
reasonable to conclude that the approximate bedrock elevation would be at approximately 802

feet.” Without Mr. Waite as an expert, VTrans asserts, the Board’s analysis becomes untenable.

VTrans also argues that the Board placed undue significance on Schultz’s experience in the

industry and its “well-developed system for preparing bids.” It disagrees with the Board’s

assessment of the weight of the evidence in other ways as well, asserting that it should have found

that Schultz failed to consider all of the information available at the time of bidding, including the

borings data, certain plan sheets, and the price differential in the cofferdam bids.6

       ¶ 45.   As noted above, we defer to the Board’s findings regarding these two elements.

Int’l Tech. Corp., 523 F.3d at 1349. As the factfinder, the Board “determines the credibility of

witnesses and weighs the persuasive effect of evidence.” In re JLD Props. of St. Albans, LLC,

2011 VT 87, ¶ 17, 190 Vt. 259, 30 A.3d 641 (quotation omitted). “[W]e will not disturb its findings

unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous,”

meaning that there is no “credible evidence” to support them. Id. (quotations omitted). VTrans

fails to demonstrate clear error here.

       ¶ 46.   At the outset, we note that the Board did not rely on Mr. Waite’s testimony alone

in reaching its conclusion. It found his testimony compelling but it also cited the absence of

drawings and pay items for Abutment #2’s subfooting, the extensive experience of Schultz’s

principal in estimating and bidding on projects, and Schutlz’s reliance on a well-developed system


       6
           VTrans also asserts that in analyzing “reasonable foreseeability,” the Board failed to
account for the location of the cofferdam, rather than just the abutment. This argument is raised
for the first time in VTrans’ reply brief and we do not address it. See Gallipo v. City of Rutland,
2005 VT 83, ¶ 52, 178 Vt. 244, 882 A.2d 1177 (stating that issues not raised in original brief may
not be raised for first time in reply brief). We note, however, that the question is not whether
Schultz should have anticipated the likelihood “of at least slightly deeper bedrock under the
cofferdam.” It is whether the “[t]he conditions actually encountered” were “reasonably
unforeseeable based on all the information available to the contractor at the time of bidding” and
whether Schultz “reasonably relied upon its interpretation of the contract and contract-related
documents.” Stuyvesant, 834 F.2d at 1581. Schultz reasonably interpreted the contract to indicate
that the ledge would be at a particular elevation and it designed its cofferdam accordingly, allowing
for a foot or two margin of error.
                                                 19
for preparing bids. VTrans’ argument that the Board placed undue significance on Schultz’s

experience in the industry and its “well-developed system for preparing bids” simply wars with

the Board’s assessment of the weight of the evidence. See also Renda Marine, Inc. v. United

States, 66 Fed. Cl. 639, 653 (2005) (“A reasonable contractor is expected to draw upon previous

experience in the industry and/or region.”). We do not reweigh the evidence on appeal. In re JLD

Props. of St. Albans, LLC, 2011 VT 87, ¶ 17. VTrans raises several other arguments in this vein

that we reject for the same reason.

       ¶ 47.   We find no reversible error in the Board’s reference to Mr. Waite as an “expert.”

We construe this label as denoting the undisputed fact that Mr. Waite is a professional engineer

who engaged in an independent engineering review of the contract materials in this particular case

in the process of designing a cofferdam for Schultz. Essentially, he was asked to opine about the

reasonableness of his own assumptions regarding what information was conveyed in the contract

materials. VTrans did not object to any particular testimony that Mr. Waite offered. It cross-

examined him on the basis for his opinion. It was VTrans, moreover, that elicited testimony from

Mr. Waite as to how a “reasonable person” would construe the contract documents.

       ¶ 48.   The record with respect to Mr. Waite’s testimony indicates the following. At the

outset of his testimony, Mr. Waite described his education, qualifications, background, and work

experience. The Board Chairman asked the parties if they would stipulate to Mr. Waite’s expertise.

Counsel for VTrans indicated that she was happy to stipulate that Mr. Waite was an expert, but

she sought “a little more specificity as to what he’s going to express an opinion on.” Counsel for

Schultz replied that Mr. Waite was “primarily a fact witness, but he also happens to be an engineer,

and in the course of his services directly for Schultz he was their consulting engineer” and

“necessarily imparted . . . conclusions.” The Board Chairman stated “That’s fine. . . . So he’s not

an expert. That’s fine.”



                                                20
       ¶ 49.   As recounted earlier, Mr. Waite testified in detail as to how he designed the

cofferdam for Schultz, including his independent review, as a professional engineer, of the contract

documents. He testified that determining “the location of the ledge at the base of the abutment

[was] critical to the location of the cofferdam.” He described why he concluded that the contract

documents reflected the elevation of ledge at Abutment #2 as approximately 802 feet. He

explained his cofferdam design, noting that it would have worked had the ledge been one or two

feet deeper but the ledge here was significantly lower than the assumed elevation. He described

the process of designing the new cofferdam. Mr. Waite explained why he had more confidence

regarding elevation in this case than in other cases.

       ¶ 50.   Counsel for VTrans then cross-examined Mr. Waite, questioning him about his

reliance on certain plan sheets and information. In response to a question by VTrans, Mr. Waite

expressed his belief “that a reasonable person looking at those cross sections, looking at the two

borings that are directly adjacent to that footing, and looking at the note that said that this bridge

is sitting directly over the existing bridge, which was placed on exposed rock, exposed ledge, a

reasonable conclusion is that because they’re shown this way, that the DOT, or the

designer, . . . believed that that ledge under that existing abutment is relatively level, slopi ng

slightly toward the river.”

       ¶ 51.   Under the circumstances, the Board did not err in relying on this testimony and

recognizing that Mr. Waite, a professional engineer, believed that his interpretation of the contract

materials was reasonable. The question before the Board was whether “[t]he conditions actually

encountered” were “reasonably unforeseeable based on all the information available to the

contractor at the time of bidding” and whether Schultz “reasonably relied upon its interpretation

of the contract and contract-related documents.” Stuyvesant, 834 F.2d at 1581. While labeling

Mr. Waite an “expert” may have been technically inaccurate, it was fair to rely on his testimony

with respect to these elements here.

                                                 21
                                              3. Damages

        ¶ 52.      Finally, VTrans argues that Schultz is not entitled to an equitable adjustment

because the “work” of the contract was unchanged.        It relies on subsection (d) of the “Different

Site Conditions” provision in the contract, which states that “No Contract adjustment will be

allowed under this clause for any effects caused on unchanged work.” VTrans maintains that this

clause incorporates a body of law that distinguishes between design and performance

specifications and, according to VTrans, the term “work” in the clause cited above refers to both

the design and performance specifications of the contract. VTrans cites Stuyvesant, 834 F.2d at

1582, in support of the first proposition and Daewoo Engineering & Construction Co. v. United

States, 73 Fed. Cl. 547, 567 (Fed. Cl. 2006), in support of the second. Based on these propositions,

VTrans argues that there is an additional element that must be satisfied before an equitable

adjustment can be awarded: “any differing site condition must change either the design or

performance specifications of the contract.” VTrans asserts that this additional element was not

satisfied here.7

        ¶ 53.      VTrans’ assertions are not supported by the case law it cites. Courts have focused

on the design/performance distinction in evaluating “defective specification” claims, not differing-

site-condition claims.       See, e.g., Stuyvesant, 834 F.2d at 1578 (considering claim that

“specifications were defective” in addition to differing-site-conditions claim). With respect to the

former type of claim, courts have held that “[d]etailed design specifications contain an implied

warranty that if they are followed, an acceptable result will be produced.” Id. at 1582 (citing

United States v. Spearin, 248 U.S. 132 (1918)); see also PCL Constr. Servs., Inc. v. United States,

47 Fed. Cl. 745, 794 (2000) (similarly explaining that “warranty of government specifications,” or


        7
          To the extent that VTrans raises a new and different argument in its reply brief, we do
not address it. See Gallipo, 2005 VT 83, ¶ 52. We have rejected the specific argument made in
appellant’s opening brief that subdivision (d) incorporates a particular body of law and adds
another element that must be proved to recover damages.
                                                   22
“Spearin doctrine,” “provides that if the government furnishes specifications for the production or

construction of an end product and proper application of those specifications does not result in a

satisfactory end product, the contractor will be compensated for its efforts to produce the end

product, notwithstanding the unsatisfactory results”). As one court explained, “[t]he warranty

applies only to ‘design specifications’ because only by utilizing specifications in that category

does the government deny the contractor’s discretion and require that work be done in a certain

way,” and “[w]hen the government imposes such a requirement and the contractor complies, the

government is bound to accept what its requirements produce.” PCL Constr. Servs., Inc., 47 Fed.

Cl. at 795 (further explaining that “[t]he Spearin doctrine has been discussed and clarified over the

years, often with the words ‘design’ and ‘performance’ specifications used to differentiate between

contracts for which the specifications warranty does and does not apply.” (quotation omitted)).

       ¶ 54.   In Stuyvesant, the court rejected the contractor’s defective-specifications claim

because the technical provision at issue “was not a detailed design type specification for which the

government might be liable under the defective specification theory,” but was instead “a

performance type specification for which the government does not warrant accuracy or adequacy.”

834 F.2d at 1582 (quotation and brackets omitted). Citing the Spearin doctrine and Stuyvesant,

the Daewoo court similarly rejected a defective-specification claim because it involved

performance specifications rather than design specifications. 73 Fed. Cl. at 567-68.

       ¶ 55.   These cases do not support the proposition that the word “work” in subdivision (d)

of the differing-site-conditions provision “refers to both the design and performance specifications

of the contract” or the proposition that this therefore means that the differing-site-conditions clause

“incorporates an additional element that must be satisfied before an equitable adjustment can be




                                                  23
awarded: any differing site condition must change either the design or performance specifications

of the contract.”8 We thus reject VTrans’ argument.

       ¶ 56.   In this case, the Board found that Schultz was “damaged as a result of the material

variation between the expected and the encountered conditions.” Stuyvesant, 834 F.2d at 1581.

This is the damages standard set forth in Stuyvesant and it is consistent with the language in the

contract, specifically subdivision (b) of the differing-site-conditions provision. The Board found

that Schultz reasonably relied on the ledge elevations in the bid documents in designing and pricing

its cofferdam. Because the ledge was much deeper than anticipated, Schultz was required to

construct a different, more time-consuming and more expensive, cofferdam. In the words of

subdivision (b), the differing site conditions “cause[d] an increase . . . in the cost or time required

for the performance of any work under the Contract.” See also Renda Marine, 66 Fed. Cl. at 656

(explaining that to recover damages for Type I differing-site-condition claim, contractor must

“prove[] by a preponderance of the evidence that its increased performance costs were solely

attributable to the materially different subsurface conditions” (quotation omitted)); Spirit Leveling

Contractors v. United States, 19 Cl. Ct. 84, 94 (1989) (stating that to recover damages for Type I


       8
          In fact, though not raised or discussed below, the language in subdivision (d) appears to
be a resurrection of “the old ‘Rice Doctrine’—which precluded the recovery of compensation for
the effect of a delay resulting from a change,” that is, consequential “delay damages.” R. Nash &
J. Cibinic, The ‘Rice Doctrine’: Has It Been Resurrected?, 10 No. 12 Nash & Cibinic Report ¶ 64
(Dec. 1996) (discussing language found in subsection (d) above); see also United States v. Rice,
317 U.S. 61, 67 (1942) (concluding that contractor was not entitled to equitable adjustment for
consequential damages resulting from delay caused by government’s unexpected discovery of
unsuitable soil condition because “[i]t was never contemplated that delays incident to changes
would subject the Government to damage beyond that involved in the changes themselves”);
T. Kelleher Jr. et al., The Resurrection of Rice? The Evolution (and De-Evolution) of the Ability
of Contractors to Recover Delay Damages on Federal Government Construction Contracts, 39
Pub. Cont. L.J. 305 (Winter 2010). We are not concerned with “delay damages” here. Cf.
Hardeman, Inc. v. United States, 186 Ct. Cl. 743 (1969) (distinguishing between attempt to recover
“delay damages” as described in Rice and request for equitable adjustment for increase in cost of
performance brought about by changed condition, explaining that “equitable adjustment allowable
as a result of a changed condition is the difference between what it cost (the contractor) to do the
work and what it would have cost it if the unforeseen conditions had not been encountered”
(quotation omitted)).
                                                  24
differing-site-conditions claim, “contractor must demonstrate that the excess costs are attributed

entirely to the materially different subsurface conditions met at the site”).

       ¶ 57.   The Board specifically found that the differing conditions required additional work

for which Schultz was not paid and required a longer timeframe to complete the project, which

resulted in the assessment of liquidated damages. VTrans did not present evidence or testimony,

or cross-examine Schultz’s witnesses, regarding the costs Schultz claimed as damages.           It

stipulated to the admission of exhibits that contained the invoices on which Schultz based its

damages. VTrans does not challenge any particular cost item on appeal. We conclude that the

Board’s damages award is supported by its findings and by the record and we find no error.

       Affirmed.

                                                 FOR THE COURT:



                                                 Associate Justice




                                                 25
