« PrejšnjaNaprej »
May 29, 1973
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
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.
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,
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.