APPEAL OF IVERSON CONSTRUCTION COMPANY (A/K/A ICONCO)

IBCA-981-1-73

Decided May 1, 1973

Contract No. 14-06-D-7193, Specifications No. DC-6898, Tower Footings for Upgrading, Section of MalinRound Mountain 500-kv Transmis

sion Line, Pacific Northwest-Pacific Southwest Intertie, Bureau of Reclamation.

Denied Without Prejudice.

Rules of Practice: Appeals: Generally-Rules of Practice: EvidenceRules of Practice: Witnesses

A contractor's application to take depositions of retired Bureau employees and of a newspaper reporter will be denied, since such prospective witnesses are not under the control of the Government and the Board has no jurisdiction over third parties.

Rules of Practice: Appeals: Generally-Rules of Practice: EvidenceRules of Practice: Witnesses

A contractor who fails to take advantage of Government offers to examine certain information relative to its claims is not entitled to have its application to take the depositions of Government employees for purposes of discovery granted, as the contractor has not shown good cause as required by the Board's rule governing discovery (43 CFR 4.115).

APPEARANCES: Wade H. Hover, Attorney at Law, San Jose, California, for the appellant; William A. Perry, Department Counsel, Denver, Colorado, for the Government.

INTERIOR BOARD OF CONTRACT APPEALS

ORDER

This appeal stems from a contract for the upgrading of a section of transmission line at an estimated price of $258,700, and consists of two claims. The first claim, in the amount of $80,304.95, arose out of an alleged acceleration in performance ordered by the Government. The second claim is in the sum of $8,476 and is for additional for additional concrete required.

The appellant has made an application under Sec. 4.115 of the Board's rules to take oral depositions of William C. Hart, John R. Merlino, John Chiolero, Donald Hildebrandt, and William Boyett (or "Bouett"), who are allegedly employed by the Bureau of Reclamation, and of Dennis Smith, who is identified as an employee of a newspaper in Burney, California. As specified in the application, the deposition of Mr. Smith, if allowed, is intended for use as evidence and the purpose of the other depositions is discovery.

In its application, appellant asserts that Messrs. Hart, Merlino, Chiolero, Hildebrandt and Boyett are Bureau employees and inspectors who had control and authority to issue orders on the job and that each actively participated in giving such orders. They are said to have "personal knowledge of the progress of the work and orders of supervisors, etc."

508-212-73

80 I.D. Nos. 5 & 6

The appellant also alleges that "these persons were all identified in Government records and their acts and conduct are well known to the Government but not to" the contractor. Appellant states that they have been interviewed by the Government but not by it. Appellant believes that "some or all *** have made written and oral statements which" it "believes will be helpful to proof of its case."

Finally, the belief is expressed by the appellant that the passage of time is prejudicial to its case, that details may be forgotten, that "some are retired, and that as time passes others may become unavailable." It is said that if they are produced for oral depositions, the "costs of transporting [the] witnesses at [the] time of hearing will be cut considerably."

Appellant seeks to take Mr. Smith's deposition in the belief that he has "research data available that will further prove" its appeal which it "needs *** for the fair and proper presentation of its case

not occurred. In the Government's view the extent, if any, of examination by deposition cannot be determined in advance of inspection of the documents. Finally, the Government objects to the application on the ground that the appellant has failed to specify with particularity the scope of the respective examinations to be conducted.

For the reasons hereinafter set forth, the application in its entirety is denied without prejudice to renewal. Messrs. Chiolero and Boyett are retired and no longer employed by the Bureau of Reclamation, according to Department Counsel. Mr. Smith has not been employed by the Bureau. As such they are third parties over whom the Board has no jurisdiction.1 In the absence of a showing that the Government has control over Messrs. Chiolero, Boyett, or Smith, the application as to them is denied ipso facto.2

For other reasons, the application is denied as to Messrs. Hart, Merlino and Hildebrandt. In the first place, as we recently observed, the granting of applications to take depositions is discretionary with the Board. Even if good cause is

1 Blackhawk Heating & Plumbing Co., Inc., & Donovan Construction Company, VACAB No. 744 (September 23, 1968), 68-2 BCA par 7252; Unicon Management Corporation, VACAB Nos. 470 and 515 (August 12, 1968), 68-2 BCA par. 7180.

2 Id. In addition, Mr. Smith's relationship to this case appears remote at best. But even if it can be shown that his testimony has relevance, an application for the taking of a deposition for use as evidence will not ordinarily be permitted unless the deponent will be unavailable for the hearing. Carl W. Olson & Sons Co., IBCA-930-9-71 (April 18, 1973), 73-1 BCA

par..

3 Carl W. Olson & Sons, note 2, supra.

shown, as required under Sec. 4.115, a deposition will not be authorized should it appear that the appeal will not be expedited thereby.*

It has been said that the term "good cause shown" in a rule regulating discovery is flexible and has no fixed or definite meaning; each application thereunder is to be evaluated upon the circumstances appearing from the pleadings and then determined by the sound discretion of the adjudicatory body before whom it is made."

Here the complaint is stated in broad, general terms. The claims do not appear unusual in complexity or magnitude. The appellant has not particularized in its application the nature of the inquiries it intends to make. The purpose to be served by the taking of the depositions is by no means clear. The Government, on the other hand, has offered to make available to the appellant all unprivileged documents relating to the appeal. Under the circumstances it does not appear that the

• Id. Cf. National Construction Company, VACAB No. 775 (January 24, 1969), 69-1 BCA par. 7475, in which the Board held: "Where a discovery motion or application does not assert or show good, cause for the discovery, and the record as it stands at the time of consideration of the motion or application does not either disclose such good cause, or that an order upon the opposing party to produce the information or documents sought would serve the general purposes of pre-trial discovery procedures to limit the issues to be tried, to lead to stipulation as to matters of fact, to preclude surprise at the hearing, or otherwise contribute to a just and equitable disposition of the appeal without undue delay, the Board will not issue such an order."

& Tholander v. Tholander, 111 A.2d 643, 644 (N. J. Super. 1955).

Affirmed.

Railroad Grant Lands-Scrip: Generally

A release filed by a land-grant railroad pursuant to section 321 (b) of the Transportation Act of 1940, 54 Stat. 954, extinguishes the right of the railroad or its attorneys-in-fact to select lands or receive compensation in lieu of lands originally acquired by it under the Act of July 27, 1866, in aid of construction of the railroad but relinquished under the Act of June 4, 1897.

Scrip: Payment in Satisfaction

Where a railroad's forest lieu selection rights are extinguished by a release given to the United States, the rights (if any) of a purchaser of the selection rights from the railroad are also extinguished.

APPEARANCES: Edward D. Neuhoff, Esq., pro se and for E. L. Cord; Thomas Trimble, Esq., of Jennings, Strouss & Salmon, for Donald E. Wheeler.

OPINION BY MR. RITVO
INTERIOR BOARD OF

LAND APPEALS

E. L. Cord, Donald E. Wheeler, and Edward D. Neuhoff seek review of separate Bureau of Land Management decisions rejecting their respective applications for cash redemptions of certain forest. lieu selection rights made pursuant to the Act of August 31, 1964, 43 U.S.C. § 274 (1970), and the pertinent regulation 43 CFR 2012.1 et

seq. Each decision recited that the alleged rights derived through the Santa Fe Pacific Railway Company (hereafter Santa Fe), had been released and relinquished by Santa Fe and were not valid. The gravamen of the several appeals is substantially similar. The appellants deny that their rights were extinguished by the release. They assert that they hold valid subsisting scrip and that they are entitled to satisfaction as provided by the Act of August 31, 1964, supra. The appeals, therefore. are consolidated for the purposes of this decision.

Appellants' scrip stems from the interaction of several statutes granting lands or lieu rights to Santa Fe. Certain lands were patented to the railroad under the grant made by the Act of July 27, 1866, 14 Stat. 292. They were reconveyed by the railroad to the United States pursuant to the Forest Exchange Act of June 4, 1897, 30 Stat. 36, as

1 The names of the applicants, their application numbers, the date of the Bureau of Land Management decision and the appeal numbers are as follows: