ABCD _______________________________ DENIED: October 29, 1998 _______________________________ GSBCA 11446, 11447 NATURAL LANDSCAPE CONTRACTORS, INC. Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Howard A. Pollack of Braude & Margulies, Washington, DC, counsel for Appellant. Martin A. Hom, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, BORWICK, and HYATT. BORWICK, Board Judge. Background These appeals involve alleged differing site conditions for landscaping contracts between appellant and respondent General Services Administration for various sites in the Washington, DC area. The claims were filed on April 16, 1991, ten years after the commencement of the performance period under the contract. After the contracting officer's denial, the appeals were filed at this Board on September 11. The Board convened a one-day hearing on May 12, 1992. Appellant charges respondent with misrepresenting the condition of the sites to be serviced and alleges a differing site condition. We deny the appeals. Appellant has not shown that respondent misrepresented the condition of the sites. Furthermore, the contracts did not contain a differing site conditions clause. In view of our disposition, we do not consider respondent's claim of laches. Findings of Fact In earlier appeals on these contracts, we dismissed for lack of jurisdiction appellant's claims for differing site condition which were orally presented by appellant's counsel at the hearing on the merits. We did so because appellant had not at that time presented a claim for a differing site condition to the contracting officer, Natural Landscape Contractors, Inc., GSBCA 9187, et al., 91-2 BCA 23,886, at 119,656. We did, however, in the interest of judicial economy, make findings on the condition of the site. Based solely on the testimony of appellant's president, we found that appellant, along with other bidders, inspected the property in October and November of 1980, and that at the commencement of performance on these contracts, the worksites were overgrown as compared to the conditions in October of 1980. The solicitations for Contracts GS-11C-10030 and GS-11C- 10091 were issued in late January of 1981. Appeal File, GSBCA 11446, Exhibit 1; Appeal File, GSBCA 11447, Exhibit 1. The solicitations advised bidders that: [A]n official inspection tour of the grounds around each building included in the contract will be required. . . . They may inspect all exterior areas of work between the hours of 8:15 a.m. and 4:45 p.m. so that they will be aware of the nature and extent of the work. Id. Appellant alleges that its president inspected the grounds in October 1980. Respondent's employee in charge of tree care remembers accompanying appellant's president on a site inspection in late January of 1981. Transcript at 47. Respondent's procuring contracting officer recalls that a site visit for the contracts took place in January. Id. at 70. He recalls that, in October 1980, respondent's contracting personnel were drafting the solicitation and examined which sites to include in a solicitation package. It would thus be unlikely that a site visit would have been conducted in October. Id. at 73. Contract award was in early March of 1981. The performance periods of those contracts began on April 1, 1981, and ended on March 31, 1982. Respondent's Exhibits 5 and 6. The contracts required one-time fertilization of shrubs and grass, pruning and shearing of shrubs, weed control twelve or twenty-six times (depending on the nature of the site), watering planters fifty- two times, grass cutting thirty times, and other services. Appeal File, GSBCA 11446, Exhibit 1; Appeal File, GSBCA 11447, Exhibit 1. There was no differing site condition clause in the contracts. Id. Appellant filed its differing site condition claims with the contracting officer on April 1, 1991, exactly ten years to the day after the start of the performance period and after we issued our decision on these appeals. Appellant alleged that grass, weeds, and shrubs were not maintained and were overgrown on the sites prior to the start of contract performance. Appeal File, GSBCA 11466, Exhibit 6; Appeal File, GSBCA 11447, Exhibit 5. The contracting officer denied the claims. He noted that the solicitations for the contracts were issued in January of 1981, with the proposal due date in February. The contracting officer stated that while it was difficult at this time to ascertain the date of the site inspection, it was "obvious" that the inspection took place between the time of the issuance of the solicitation and the proposal due date on the contracts. Appeal File, GSBCA 11446, Exhibit 7; Appeal File, GSBCA 11447, Exhibit 7. Discussion The parties differ over whether there was, in fact, a site visit in October of 1980, as testified to by appellant's president at the earlier hearing, or whether the site visit was in January of 1981, as testified to by respondent's contracting personnel.[foot #] 1 We conclude, based on the additional testimony of respondent's contracting personnel presented at this hearing, that the site visit occurred in January of 1981, after the issuance of the solicitation, and not October of 1980. This new finding is not material to the result, however, because a differing site condition clause was not in the contract. It would make little sense to have a differing site conditions clause in the contract given the continual growth of grass, weeds, and shrubs. There can be no recovery for a differing site condition in the absence of a differing site conditions clause.[foot #] 2 Communications International Inc., ASBCA 30976, et al., 88-1 BCA 20,280, at 102,631 (1987); Meurer, Serafini and Meurer, Inc., AGBCA 81-167- 3, 81-2 BCA 76,567, at 76,576. Appellant, relying on Womack v. United States, 182 Cl. Ct. 399, 389 F.2d 793 (1968), argues that respondent made an innocent misrepresentation as to the condition of the site, and that non- negligent misrepresentations can be the basis of recovery. That case, however, turned on a variation from the contract's estimated quantity of the number of title and usage documents to be microfilmed as part of the Bureau of Land Management's record revision project. The court held that an innocent, but negligent, variation in the estimated quantity could serve as a basis for a breach claim. The variation in estimated quantity ----------- FOOTNOTE BEGINS --------- [foot #] 1 We treat this as analogous to a request for reconsideration of an earlier finding based on additional evidence. Appellant's president chose not to attend this latest hearing and reaffirm his earlier testimony. Transcript at 4-5. [foot #] 2 The differing site conditions clause is not mandatory for service contracts, 48 CFR 52-301 (1991), and is thus not read into the contract by operation of law. G.L. ____ Christian Assoc. v. United States, 160 Ct. Cl. 58, 320 F.2d 345 _______________ ______________ (1963). ----------- FOOTNOTE ENDS ----------- clause did not shield the Government from a breach claim. Womack, 182 Ct. Cl. at 411-12, 389 F.2d at 800. In these appeals, the record does not establish that the Government misrepresented the condition of the sites in the contract. The solicitation identified the sites, and afforded a site visit so that bidders would know the nature and extent of the work. The Government, however, did not guarantee the condition of the sites. Bidders should have anticipated further growth of grass, shrubs, and weeds between the time of the site visit and the award of the contracts. Further, Womack does not stand for the proposition that a party is entitled to recover for a differing site condition under a "misrepresentation" theory when the differing site condition clause is not in the contract. In view of our disposition, we do not consider respondent's defense of laches. Decision These appeals are DENIED. ________________________________ ANTHONY S. BORWICK Board Judge We concur: _____________________________ DONALD W. DEVINE Board Judge _____________________________ CATHERINE B. HYATT Board Judge