GRANTED IN PART: February 10, 1993 GSBCA 12087(11217)-REIN CHERRY HILL CONSTRUCTION, INC., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Robert J. Martinez and Sally B. Pfund of Williams & Jensen, P.C., Washington, DC, counsel for Appellant. M. Leah Wright, Real Property Division, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), LaBELLA, and BORWICK. DANIELS, Board Judge. This appeal involves an equitable adjustment, pursuant to a differing site conditions clause, to a contract for clearing and grading land in College Park, Maryland. The case was earlier presented to us for a determination as to the contractor's entitlement to such an adjustment. We found for the contractor; the site contained approximately one-third more topsoil than could reasonably have been expected in reliance on the soil borings provided by the owner. At the request of the parties, we dismissed without prejudice the portion of the case dealing with the amount of recovery. Cherry Hill Construction, Inc. v. General Services Administration, GSBCA 11217, 92-3 BCA 25,179. The parties have been unable to agree on an amount. On the contractor's motion, we have reinstated the appeal for the purpose of deciding that figure. The parties have submitted the question of quantum on the record. Rule 11. After reviewing the documents supplied by the appellant, Cherry Hill Construction, Inc. (Cherry Hill), and the arguments made by both that party and the respondent, the General Services Administration (GSA), we conclude that appellant has correctly calculated the cost of the work, but that respondent's view of the appropriate markup is right. Findings of Fact 1. In preparing its bid to perform this job, Cherry Hill reasonably estimated that it would have to remove from the excavation site approximately 14,000 cubic yards of topsoil. Cherry Hill, 92-3 BCA at 125,472 (Finding 7), 125,477. The topsoil could not be used at the site or elsewhere as fill material; it had to be trucked to another location where it could be dumped for a fee. Id. at 125,474 (Finding 14). 2. We concluded that the actual amount of topsoil at the site was about one-third greater than what was shown in the soil test borings that GSA had included in the solicitation against which Cherry Hill bid. 92-3 BCA at 125,477-79. Thus, the contractor is entitled to compensation for the cost of removing an additional 4,667 cubic yards (one-third of 14,000) of topsoil. 3. Cherry Hill actually hauled from the site to dumps at which a fee was charged 2,520 truckloads of dirt that was unsuitable for fill purposes. 92-3 BCA at 125,474 (Finding 13 n.4). Each of these loads contained about eleven cubic yards of topsoil and other unsuitable soils. Id. at 125,464-75 (Finding 19). The topsoil and the other soils were mixed together in the normal course of excavation work. Id. at 125,473 (Finding 12). Thus, approximately 27,720 cubic yards of material went from the site to pay dumps. 4. Cherry Hill's estimate of the cost of hauling from the jobsite excavated material which was suitable for reuse was $2.44 per cubic yard. Appeal File, Exhibit 13 at 5; Affidavit of Robert H. Coburn, Cherry Hill project manager (Coburn Affidavit) (Attachment 1 to Appellant's Brief on the Issue of Quantum), 8. GSA does not contest this figure. If each truckload contai ned eleven cubic yards of dirt, the cost of hauling one load of suitable material was thus $26.84. 5. The contractor hauled as much of the topsoil and other unsuitable material as possible to a particular dump. The dump charged $50 per load to take the material, and a trucking firm charged $42 per load to do the hauling. Coburn Affidavit, 2. In mid-April 1990, this dump closed. Id., 3. By this time, Cherry Hill had taken 2,051 truckloads (22,561 cubic yards) of dirt to this dump. Id.; Appeal File, Exhibit 13 at 4. Cherry Hill notified GSA that the dump had closed, and that the consequence could be an increased claim. Coburn Affidavit, 3; Appeal File, Exhibit 8. 6. The contractor then made arrangements to deposit the remainder of the unsuitable material at another dump, which was located a bit farther from the jobsite. The second dump charged $65 per load to take the material, and the trucking firm billed $46 per load for hauling. Coburn Affidavit, 4; Appeal File, Exhibit 13 at 4. 7. In its certified claim, which was submitted on December 7, 1990, Cherry Hill asked that GSA reimburse it for the cost of hauling and dumping additional topsoil, plus a ten percent markup. The amount of the claim was $103,198.26. 92-3 BCA at 125,475 (Finding 24); Appeal File, Exhibit 13 at 5. In presenting the issue of quantum to the Board, the contractor has revised its claim to read as follows: 425 truckloads to second pay dump, at $84.16 per load $35,768.00 General and administrative expenses (alternatively labeled "overhead"), at 6.73 percent 2,407.19 Subtotal $38,175.19 Profit, at 10 percent 3,817.52 Subtotal $41,992.71 Bonding, at $9.00 per $1,000 377.94 Insurance, at $3.54 per $1,000 148.65 Total $42,519.30 The figure of 425 truckloads is derived by dividing 4,667 cubic yards of unanticipated topsoil by eleven cubic yards per load, and then rounding up. The figure of $84.16 per load is the cost of taking unsuitable material to the second pay dump ($111 per load) less the cost that would have been incurred for hauling the material if it had been suitable for fill ($26.84 per load). The other markups are attested by the contractor's project manager to be correct. Coburn Affidavit, 9-11. The figure for general and administrative expenses is additionally supported by financial statements which were provided to Cherry Hill by its auditor in March 1991. Appellant's Brief on the Issue of Quantum, Attachment 2. 8. The contract provides that claims for equitable adjustments to the price which are made in accordance with the "Differing Site Conditions" clause shall be "subject to the requirements and limitations set out in paragraph (a) of the 'Equitable Adjustments' clause." Appeal File, Exhibit 1 at page 28 of GSA form 3506. This paragraph states that for work performed by other than the contractor's own forces, the contractor is entitled to the cost of the work plus a commission of no more than ten percent; no markups for overhead and profit may be added to the cost. Id. at pages 27-28 of GSA form 3506. Discussion Equitable adjustments are "corrective measures utilized to keep a contractor whole when the Government modifies a contract." Bruce Construction Corp. v. United States, 163 Ct. Cl. 97, 100, 324 F.2d 516, 518 (1963). In pricing such an adjustment, the adjudicator's task is to determine the reasonable costs that would have been incurred by a prudent businessman, given the situation in question. Nager Electric Co. v. United States, 194 Ct. Cl. 835, 851, 442 F.2d 936, 945 (1971); see also Plaza Maya Ltd. Partnership, GSBCA 9086, 91-1 BCA 23,425, at 117,501 (1990); Dawson Construction Co., GSBCA 5364, 82-1 BCA 15,701, at 77,661. In a differing site conditions case, these costs are those which the contractor actually and reasonably incurred in performing the job as it existed, less those the firm would have sustained but for the changed condition. Baltimore Contractors, Inc., GSBCA 4808, 80-2 BCA 14,539, at 71,672. We apply this formula to determine the cost to Cherry Hill of depositing 4,667 unexpected cubic yards of topsoil in pay dumps. Relying on soil test borings provided by GSA, Cherry Hill anticipated hauling 14,000 cubic yards of topsoil to a pay dump. It actually took to the dumps 27,720 cubic yards of dirt (2,520 loads times eleven cubic yards per load), which included other soils that were unsuitable for use as fill material. But for the unanticipated amount of topsoil, Cherry Hill would have taken 23,053 cubic yards of material (27,720 minus 4,667) to the dumps, and 60.73 percent of it (14,000 divided by 23,053) would have been topsoil. After Cherry Hill had deposited 22,561 cubic yards of dirt in a relatively inexpensive dump, the facility closed. Applying our percentage to this figure, we find that the contractor placed 13,701 cubic yards of topsoil at the first dump. This number is smaller than the total amount of topsoil that Cherry Hill anticipated having to remove from the site. Thus, we agree with appellant that all of the additional topsoil should be viewed as having been taken to the second, more expensive dump. We reject GSA's contention that the last trips were made necessary by Cherry Hill's failure to separate from the topsoil other materials that were unsuitable for use as fill, and that all the topsoil should have been hauled away first. As we found earlier, topsoil and other unsuitable materials were mixed together in the normal course of excavation before being removed. "How could the work have been performed otherwise? Soil layers are not arranged evenly, so that they may be sheared precisely by bulldozers." Cherry Hill, 92-3 BCA at 125,478. Appellant is correct in observing, "[I]t does not . . . matter [in] which trucks the additional topsoil was located because, but for the differing site condition, 425 fewer loads would have been taken to pay dumps. . . . [Cherry Hill] is entitled to recover the cost which would have been avoided if the 425 loads had not been present." Appellant's Reply Brief at 3.1 We also reject GSA's alternative theory that appellant should be permitted to recover only one-third of its original claim ($34,399.42). Cherry Hill correctly points out that it properly amended its claim, once quantum was before the Board, to conform to actual costs. Tecom, Inc. v. United States, 732 F.2d 935, 937-38 (Fed. Cir. 1984) (citing J.F. Shea Co. v. United States, 4 Cl. Ct. 46, 54-55 (1983)). We agree with GSA, however, that Cherry Hill is entitled to no greater markup on the price of the work than the ten percent figure included in the original claim. This is because the effort to haul away the unexpected amount of topsoil, and to dump this dirt, was performed by persons not employed by the contractor. Under the terms of the contract, Cherry Hill may receive a ten percent commission on this work, but no overhead or profit. Decision The appeal is GRANTED IN PART. Appellant is entitled to recover the cost of the work which would not have been incurred but for the differing site condition, $35,768.00, plus a ten percent commission on that amount. GSA shall pay to Cherry Hill $39,344.80, plus interest from the date on which the agency received the claim dated December 7, 1990. 41 U.S.C. 611 (1988). _________________________ STEPHEN M. DANIELS Board Judge ____________________ 1 GSA makes much of the fact that 4,667 cubic yards of unanticipated topsoil divided by eleven cubic yards per truckload equals 424.3 loads, not 425. The agency would have us order it to pay the contractor for extra expenses relating to only 424 loads. Taking three-tenths of a load of dirt to a dump involves hiring a trucker to transport the dirt, and depositing the soil at the dump requires payment of a fee. We suspect, but do not know, that because the same effort is involved to drive between two locations a partially-full truck and a completely-full truck, the cost of cartage is the same for the two types of load. We suspect, but do not know, that the dump fee is less for three- tenths of a load than for a full load. Both items of cost are so small, however, that in light of the relative expense of developing a factual record with regard to them, we simply assume in this case that the costs per truckload are the same no matter how full the truck. We concur: _________________________ _________________________ VINCENT A. LaBELLA ANTHONY S. BORWICK Board Judge Board Judge