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May 29, 1973

at the hearing (Tr. 23-29), Clement Theodore Cooper, Esq., stated that he considered the hearing at that juncture to be a small pre-trial conference (Tr. 27).

Having been afforded the opportunity to handle such matters at the hearing, appellants cannot be heard to complain that the lack of a prehearing conference was prejudicial

error.

Severance

Appellants, prior to the hearing, filed a motion for severance. By order dated May 25, 1970, Judge Luoma denied the motion. Appellants renewed the motion at the hearing (Tr. 27). Appellants argue that the failure to grant such motion was a denial of due process because it was virtually impossible to hear and receive evidence as to each individual claim. Such an argument is merely the statement of an unsupported conclusion. Appellants present no evidence of unfairness of the hearing based on the large number of claims involved herein. Appellants were afforded the opportunity to present evidence concerning each claim at the hearing, yet they failed to present any probative evidence in regard to any individual claim. Laches

Appellants argue that the Government should have acted by injunction, ejectment, or withdrawal of the lands when it had actual knowledge that vast numbers of location notices were being filed for areas in the Piceance Creek Basin and that failure to do so precluded

the later contest proceeding. The argument cannot be sustained.

Colorado Contest 441 was not barred by the doctrine of laches. By statute, 43 U.S.C. §2 (1970), the Secretary of the Interior has been granted plenary authority to administer the public domain. Inherent in such authority is the duty to see that valid mining claims are recognized, invalid ones eliminated, and the rights of the public preserved. Cameron v. United States, supra.

The general rule is that laches or

neglect of duty by the officers of the Government is no defense to a suit by the Government to protect the public interest or preserve a public right. 43 CFR 1810.3(a); United States v. California, 332 U.S. 19, 3940 (1947); Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917).

Until mining claims are patented they are not immune from attack, and the Government, as the holder of legal title, may contest the validity of such at any time. United States v. Ideal Cement Company, Inc., 5 IBLA 235, 79 I.D. 117, 120 (1972). Appellants have provided no evidence that the delay from February 10, 1967, when the last location notices were filed until August 1968 when the complaint was issued, has prejudiced their rights in any way.

Given the above, there is no need to explore appellants' argument involving the question of whether the Secretary of the Interior's administration of the public lands is the

exercise of a governmental or pro- adopt the findings and conclusions prietary function.

Other Unpatented Claims Appellants' argument that the contest was discriminatory because the Government did not join, herein, other persons holding interests in unpatented mining claims in the Piceance Creek Basin also lacks merit.

It would be unreasonable to require that all such individuals and corporations be joined as parties in Colorado Contest 441. Colorado Contest

441 had a common thread which made logical the contest of 2,910 claims involving numerous contestees. The thread was that all the claims herein were allegedly located by Merle I. Zweifel. He had personal knowledge of the procedures

followed in the location of all the claims involved in the contest.

Appellants have made assertions of discrimination, but have provided no substantive evidence to advance such a charge. In order for appellants' assertions to stand they must show that the Government acted arbitrarily by not joining other persons-not Zweifel's co-locators who held interests in unpatented mining claims in the Piceance Creek Basin. Merely because such claimants were not joined does not support appellants' charge of discrimination.

Findings and Conclusions

The action of Judge Luoma in rejecting appellants' proposed findings of fact and conclusions of law was not an abuse of discretion. According to 43 CFR 4.452-8 (b), the Administrative Law Judge may

proposed by one or more of the parties to a hearing. The regulation allows the Judge to exercise his discretion in accepting or rejecting the findings and conclusions.

Appellants also charge error because the Judge did not make a ruling on each and every finding and conclusion as required by 43 CFR 4.452-8(b). However, the Department and the courts, have held that where an Administrative Law

Judge rules, in a single sentence, on all of the proposed findings and conclusions submitted by a contestee, and the ruling on each finding and conclusion is clear, it is not necessary that the Judge make a separate ruling on each finding and conclu

sion. National Labor Relations Board v. Sharples Chemicals, Inc., 209 F.2d 645, 652 (6th Cir. 1954); United States v. Chas. Pfizer & Co., Inc., 76 I.D. 331, 352 (1969); United States v. Driear, 70 I.D. 10, 11 (1963).

Such is the case herein, as Judge Luoma stated in his decision:

The proposed findings of fact and conclusions of law submitted by Contestees have been considered and, except to the extent that they have been expressly or impliedly affirmed in this decision, they are rejected on the grounds that they are, in whole or in part, contrary to the facts and law or because they are immaterial.

New Evidence

Appellants have also submitted with their appeal additional evidentiary material. Such material may not be considered or relied upon in reaching a final decision. The record

May 30, 1973

made at the hearing constitutes the sole basis for decision except to the extent that official notice may be taken of the public records of the Department of the Interior and of any matter of which the courts may take judicial notice. 43 CFR 4.24. Such a tender of evidence may only be considered for the limited purpose of deciding whether a further hearing is warranted. United States v. Gunn, supra; United States v: Winters, 2 IBLA 329, 78 I.D. 193 (1971). The evidence submitted in this case does not justify such a further hearing.

Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1, the decision appealed from is affirmed.

JOSEPH W. Goss, Member.

WE CONCUR:

FREDERICK FISHMAN, Member.
DOUGLAS E. HENRIQUES, Member.

H. W. CALDWELL AND SON, INC.

IBCA-824-2-70

While Federal custom ordinarily prevails
over local usage when in conflict, in re-
solving a dispute concerning the reason-
ableness of tolerances permitted under a
contract for the construction of a road,
state and not Federal custom is held to
govern, since the evidence showed state
usage to be standardized and the Fed-
eral trade practice was not clearly
established.

Rules of Practice: Appeals: Burden of
Proof-Rules of Practice: Evidence

A contractor under a contract for the con-
struction of a road has not sustained its
burden of proof where the only evidence
offered by it in support of a particular
claim is the testimony of one witness who
repeated the allegations contained in the
contractor's original claim letter, as such
assertions have no probative weight in
the absence of further amplification and
documentation.

Contracts: Construction and Operation: Changed Conditions-Contracts: Construction and Operation: Drawings and Specifications

Where a contract for the construction of a road provided for the placement of underdrain, estimated at 3000 linear feet, a claim by a contractor under the Changed Conditions clause upon encountering water seepage, which necessitated less than 3000 linear feet of underdrain to be placed, was denied, since the presence of a wet condition should have been

Decided May 30, 1973 reasonably anticipated from a study of

Contract No. NPS-WASO-NATR-V63/28, Natchez Trace Parkway Project 3-0-7, National Park Service.

Sustained in Part.

Contracts: Construction and Operation: Drawings and Specifications Contracts: Construction and Operation: General Rules of Construction

the contractual documents and the amount of wetness encountered was actually less than the contractor might have expected.

APPEARANCES: Robert B. Ansley, Jr., Attorney at Law, Smith, Currie & Hancock, Atlanta, Georgia, for the appellant; Justin P. Patterson, Department Counsel, Washington, D.C., for the Government.

OPINION BY MR. PACKWOOD

INTERIOR BOARD OF
CONTRACT APPEALS

On October 2, 1963, the National Park Service awarded Contract No. NPS-WASO-NATR-V-63/28 to H. W. Caldwell & Son, Inc. (appellant), in the estimated amount of $1,816,424.15 for Project 3-0-7, Natchez Trace Parkway, in Madison County, Mississippi. The contract called for grading, drainage structures, special borrow plating, selected borrow topping, aggregate base, bituminous concrete pavement and other work for the construction of 8.561 miles of the Parkway, beginning near Ridgeland, Mississippi, and ending 3.7 miles south of Mississippi Highway 43.

This project was a relocation of the existing parkway, made necessary by the action of the Pearl River Reservoir Commission in developing the Ross Barnett Reservoir which was scheduled to flood some sections of the existing parkway. The contract was prepared on standard forms for construction and contained the General Provisions set forth in Standard Form 23-A (April 1961 Edition), as well as seventeen pages of special provisions. The contract also incorporated by reference the provisions of Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects, FP-61 (January 1961), U.S. Department of Commerce, Bureau of Public

Roads.

The contracting officer terminated the contract for default by letter of

March 1, 1967, which advised the contractor that as of January 15, 1967, the contract work was estimated to be 63 percent complete, while the time authorized was overrun by four calendar days. The letter recited that failure to prosecute the work with such diligence as to insure completion within the authorized time constituted a default on the part of the contractor and justified termination of the contract by the Government. The contractor's right to proceed with the work

was therefore terminated.

After completion of the project by another contractor, Caldwell submitted claims for equitable adjustments of its contract by brief of June 28, 1968. The brief set forth 19 separate claims, designated by the letters "A" through "S" and alleged that

*the contractor encountered extra work, changes, changed condition, excusable and Government-caused delays, and interference by the Government with the Contractor's planned methods of performance which, in effect, took the control over the project work away from the Contractor.

The Findings of Fact and Decision of the Contracting Officer, dated January 6, 1970, denied all claims except for minor portions of Claims E and S. Additional compensation of $2,607 and 18 days extension of the contract time were allowed under Claim E. Credit for the cost of culvert pipe and reinforcing steel taken over by the Government and for unpaid earnings at the time of default were allowed under Claim S. The Contracting Of

May 30, 1973

ficer further found that there were increased construction costs of $257,094.24 on the completion contract, additional engineering costs of $1,847.58 and liquidated damages of $38,800 chargeable to Caldwell. After crediting Caldwell with the allowances under Claims E and S, the Contracting Officer found the total amount due the Government to be $149,662.46.

After giving timely notice of appeal of the Contracting Officer's decision, the appellant filed its complaint, restating its claims "A" through "S", asking for an equitable adjustment in the form of an extension of the contract time by 261 days, and alleging the reasonable value of all the work performed by the appellant under the contract was $3,947,425.70. After deducting the sum of $1,067,681.69, which the Government had paid, the appellant requested an equitable adjustment of the contract in the amount of $2,879,744.01. Appellant further alleged that the Government wrongfully terminated its right to proceed and therefore it denied responsibility for excess costs involved in the reprocurement as well as for the liquidated damages assessed by the Government.

In response to the July 2, 1970, Order of this Board granting the Government's motion for a more definite statement of the complaint, the appellant submitted an itemized breakdown of costs totaling $4,714,337.48 and asserted that the most suitable method of providing

508-212-73

an equitable adjustment was to utilize the total cost method. After deducting the payments made by the Government, the appellant's amended complaint requested a net equitable adjustment in the amount of $3,646,655.79, together with such other costs as may be incurred after July 31, 1970 for which the contractor may be entitled to recover.

An extended hearing was held on this appeal, running from April 5 to May 3, 1971, in Jackson, Mississippi, and from June 1, to June 11, 1971, in Arlington, Virginia. The hearing produced a transcript totaling 4,484 pages in 15 volumes. The parties introduced more than 140 exhibits, many of them multi-paged. The appeal file consists of more than 800 pages in two volumes.

The individual elements of the claim, which appellant designated "A" through "S" will be referred to by the same designations in this opinion. These separate elements will be examined in the order listed before we consider the overall claims for equitable adjustment, the propriety of the default termination and the Government's related claim for excess costs, as well as the liquidated damages assessed for delayed performance.

By agreement of the parties, the hearing on this appeal was limited to the question of liability, reserving the issue of quantum for reference to the contracting officer in the event that additional liability was found to exist.

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