May 29, 1973

error.

at the hearing (Tr. 23–29), Clement the later contest proceeding. The Theodore Cooper, Esq., stated that argument cannot be sustained. he considered the hearing at that Colorado Contest 441 was not juncture to be a small pre-trial con- barred by the doctrine of laches. By ference (Tr. 27).

statute, 43 U.S.C. $2 (1970), the Having been afforded the oppor

Secretary of the Interior has been tunity to handle such matters at the granted plenary authority to adhearing, appellants cannot be heard minister the public domain. Inherto complain that the lack of a pre

ent in such authority is the duty to hearing conference was prejudicial see that valid mining claims are rec

ognized, invalid ones eliminated,

and the rights of the public preSeverance

served. Cameron v. United States, Appellants, prior to the hearing,

supra. filed a motion for severance. By or

The general rule is that laches or der dated May 25, 1970, Judge neglect of duty by the officers of the Luoma denied the motion. Appel- Government is no defense to a suit lants renewed the motion at the

by the Government to protect the hearing (Tr. 27). Appellants argue public interest or preserve a public that the failure to grant such motion

right. 43 CFR 1810.3(a); United was a denial of due process because

States v. California, 332 U.S. 19, 39– it was virtually impossible to hear

40 (1947); Utah Power & Light Co. and receive evidence as to each in

v. United States, 243 U.S. 389, 409 dividual claim. Such an argument is

(1917). merely the statement of an unsup

Until mining claims are patented ported conclusion. Appellants pre- they are not immune from attack, sent no evidence of unfairness of the

and the Government, as the holder hearing based on the large number

of legal title, may contest the validof claims involved herein. Appel- ity of such at any time. United lants were afforded the opportunity States v. Ideal Cement Company, to present evidence concerning each

Inc., 5 IBLA 235, 79 I.D. 117, 120 claim at the hearing, yet they failed

(1972). Appellants have provided to present any probative evidence in

no evidence that the delay from regard to any individual claim.

February 10, 1967, when the last loLaches

cation notices were filed until Appellants argue that the Gov- August 1968 when the complaint ernment should have acted by in- was issued, has prejudiced their junction, ejectment, or withdrawal rights in any way. of the lands when it had actual Given the above, there is no need knowledge that vast numbers of lo

to explore appellants' argument incation notices were being filed for volving the question of whether the areas in the Piceance Creek Basin Secretary of the Interior's adminisand that failure to do so precluded tration of the public lands is the

a

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

proposed by one or more of the parOther Unpatented Claims

ties to a hearing. The regulation alAppellants' argument that the

lows the Judge to exercise his discontest was discriminatory because

cretion in accepting or rejecting the the Government did not join, herein, findings and conclusions. other persons holding interests in Appellants also charge error beunpatented mining claims in the Pi

cause the Judge did not make a rulceance Creek Basin also lacks merit. ing on each and every finding and It would be unreasonable to require conclusion as required by 43 CFR that all such individuals and corpo

4.452-8(b). However, the Departrations be joined as parties in Colo

ment and the courts, have held

that where an Administrative Law rado Contest 441. Colorado Contest 441 had a common thread which Judge rules, in a single sentence, on

all of the proposed findings and conmade logical the contest of 2,910

clusions submitted by a contestee, claims involving numerous contest

and the ruling on each finding and ees. The thread was that all the

conclusion is clear, it is not necesclaims herein were allegedly located

sary that the Judge make a separate by Merle I. Zweifel. He had personal knowledge of the procedures ruling on each finding and conclu

sion. National Labor Relations followed in the location of all the

Board v. Sharples Chemicals, Inc., claims involved in the contest.

209 F.2d 645, 652 (6th Cir. 1954); Appellants have made assertions

United States v. Chas. Pfizer & Co., of discrimination, but have provided no substantive evidence to ad- Inc.

, 76 I.D. 331, 352 (1969); United vance such a charge. In order for States v. Driear, 70 I.D. 10, 11

( appellants' assertions to stand they (1963). must show that the Government

Such is the case herein, as Judge acted arbitrarily by, not joining Luoma stated in his decision: other persons not Zweifel's co-lo

The proposed findings of fact and concators—who held interests in unpat- clusions of law submitted by Contestees

have been considered and, except to the ented mining claims in the Pi

extent that they have been expressly or ceance Creek Basin. Merely because

impliedly affirmed in this decision, they such claimants were not joined does

are rejected on the grounds that they not support appellants' charge of are, in whole or in part, contrary to the discrimination.

facts and law or because they are

immaterial. Findings and Conclusions The action of Judge Luoma in

New Evidence rejecting appellants' proposed find- Appellants have also submitted ings of fact and conclusions of law with their appeal additional evidenwas not an abuse of discretion. Ac- tiary material. Such material may cording to 43 CFR 4.452–8(b), the not be considered or relied upon in Administrative Law Judge may reaching a final decision. The record

May 30, 1973 made at the hearing constitutes the While Federal custom ordinarily prevails sole basis for decision except to the

over local usage when in conflict, in re

solving a dispute concerning the reasonextent that official notice may be

ableness of tolerances permitted under a taken of the public records of the

contract for the construction of a road, Department of the Interior and of

state and not Federal custom is held to any matter of which the courts may govern, since the evidence showed state

usage to be standardized and the Fed. take judicial notice. 43 CFR 4.24.

eral trade practice was not clearly Such a tender of evidence may only

established. be considered for the limited purpose of deciding whether a further Rules of Practice: Appeals: Burden of hearing is warranted. United States Proof-Rules of Practice: Evidence V. Gunn, supra; United States v.

A contractor under a contract for the conWinters, 2 IBLA 329, 78 I.D. 193

struction of a road has not sustained its (1971). The evidence submitted in

burden of proof where the only evidence this case does not justify such a offered by it in support of a particular further hearing.

claim is the testimony of one witness who

repeated the allegations contained in the Therefore, pursuant to the au

contractor's original claim letter, as such thority delegated to the Board of

assertions have no probative weight in Land Appeals by the Secretary of the absence of further amplification and the Interior, 43 CFR 4.1, the deci- documentation. sion appealed from is affirmed.

Contracts: Construction and Opera

tion: Changed Conditions—Contracts: JOSEPH W. Goss, Member.

Construction and Operation : Drawings WE CONCUR:

and Specifications FREDERICK FISHMAN, Member. Where a contract for the construction of

a road provided for the placement of unDOUGLAS E. HENRIQUES, Member. derdrain, estimated at 3000 linear feet,

a claim by a contractor under the

Changed Conditions clause upon encounH. W. CALDWELL AND SON, INC.

tering water seepage, which necessitated

less than 3000 linear feet of underdrain IBCA-824-2-70

to be placed, was denied, since the pres

ence of a wet condition should have been Decided May 30, 1973 reasonably anticipated from a study of

the contractual documents and the Contract No. NPS_WASO-NATR-V

amount of wetness encountered was ac63/28, Natchez Trace Parkway Proj- tually less than the contractor might ect 3-0–7, National Park Service.

have expected.

APPEARANCES: Robert B. Ansley, Sustained in Part.

Jr., Attorney at Law, Smith, Currie & Contracts: Construction and Opera- Hancock, Atlanta, Georgia, for the tion: Drawings and Specifications appellant; Justin P. Patterson, Contracts: Construction and Opera- Department Counsel, Washington, D.C., tion: General Rules of Construction for the Government.

OPINION BY MR. PACKWOOD March 1, 1967, which advised the

INTERIOR BOARD OF contractor that as of January 15,
CONTRACT APPEALS 1967, the contract work was esti-

mated to be 63 percent complete, On October 2, 1963, the National

while the time authorized was overPark Service awarded Contract No.

run by four calendar days. The letNPS-WASO-NATR-V-63/28 to

ter recited that failure to prosecute H. W. Caldwell & Son, Inc. (appel- the work with such diligence as to lant), in the estimated amount of

insure completion within the au$1,816,424.15 for Project 3–0-7, thorized time constituted a default Natchez Trace Parkway, in Madi

on the part of the contractor and son County, Mississippi. The con

justified termination of the contract tract called for grading, drainage by the Government. The contracstructures, special borrow plating, tor's right to proceed with the work selected borrow topping, aggregate was therefore terminated. base, bituminous concrete pavement

After completion of the project and other work for the construction by another contractor, Caldwell of 8.561 miles of the Parkway, be

submitted claims for equitable adginning near Ridgeland, Missis

justments of its contract by brief sippi, and ending 3.7 miles south of

of June 28, 1968. The brief set forth Mississippi Highway 43.

19 separate claims, designated by This project was a relocation of

the letters "A" through “S” and the existing parkway, made neces- alleged that sary by the action of the Pearl River

* * * the contractor encountered extra Reservoir Commission in develop

work, changes, changed condition, exing the Ross Barnett Reservoir

cusable and Government-caused delays, which was scheduled to flood some and interference by the Government with sections of the existing parkway.

the Contractor's planned methods of per

formance which, in effect, took the conThe contract was prepared on

trol over the project work away from standard forms for construction

the Contractor. and contained the General Provi.

The Findings of Fact and sions set forth in Standard Form

Decision of the Contracting Officer, 23-A (April 1961 Edition), as well

dated January 6, 1970, denied all as seventeen pages of special provi

claims except for minor portions of sions. The contract also incorpo

Claims E and S. Additional comrated by reference the provisions of Standard Specifications for Con- pensation of $2,607 and 18 days exstruction of Roads and Bridges on

tension of the contract time were

allowed under Claim E. Credit for Federal Highway Projects, FP-61

the cost of culvert pipe and rein(January 1961), U.S. Department of Commerce, Bureau of Public forcing steel taken over by the GovRoads.

ernment and for unpaid earnings at The contracting officer terminated the time of default were allowed the contract for default by letter of under Claim S. The Contracting Of

May 30, 1973

ficer further found that there were an equitable adjustment was to utiincreased construction costs of lize the total cost method. After de$257,094.24 on the completion con- ducting the payments made by tract, additional engineering costs the Government, the appellant's of $1,817.58 and liquidated damages amended complaint requested a of $38,800 chargeable to Caldwell. net equitable adjustment in the After crediting Caldwell with the amount of $3,646,655.79, together allowances under Claims E and S, with such other costs as may be the Contracting Officer found the incurred after July 31, 1970 for total amount due the Government which the contractor may be ento be $149,662.46.

titled to recover. After giving timely notice of ap- An extended hearing was held on peal of the Contracting Officer's this appeal, running from April 5 decision, the appellant filed its com- to May 3, 1971, in Jackson, Missisplaint, restating its claims “A” sippi, and from June 1, to June 11, through “S”, asking for an equita- 1971, in Arlington, Virginia. The ble adjustment in the form of an ex- hearing produced a transcript totaltension of the contract time by 261 ing 4,484 pages in 15 volumes. The days, and alleging the reasonable parties introduced more than 140 value of all the work performed by exhibits, many of them multi-paged. the appellant under the contract The appeal file consists of more than was $3,947,425.70. After deducting 800 pages in two volumes. the sum of $1,067,681.69, which the The individual elements of the Government had paid, the appel- claim, which appellant designated lant requested an equitable adjust- “A” through “S” will be referred to ment of the contract in the amount by the same designations in this of $2,879,744.01. Appellant further opinion. These separate elements alleged that the Government wrong- will be examined in the order listed fully terminated its right to proceed before we consider the overall and therefore it denied responsibil- claims for equitable adjustment, the ity for excess costs involved in the propriety of the default terminareprocurement as well as for the tion and the Government's related liquidated damages assessed by the claim for excess costs, as well as the Government.

liquidated damages assessed for In response to the July 2, 1970, delayed performance. Order of this Board granting the By agreement of the parties, the Government's motion for a more hearing on this appeal was limited definite statement of the complaint, to the question of liability, reservthe appellant submitted an item- ing the issue of quantum for referized breakdown of costs totaling ence to the contracting officer in the $4,714,337.48 and asserted that the event that additional liability was most suitable method of providing found to exist.