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tractor's responsibility in these respects is a continuing one."*

The claim is therefore denied.

Claim R

The appellant alleged that it encountered a telephone cable under the access connection to the airport road which was not anticipated and which was not shown in the contract documents or plans. Appellant requested an extension of twelve contract days for the period June 17, 1966 to July 2, 1966, when it was unable to proceed with what it has described as controlling items of work.45

Mr. Caldwell testified that the unexpected encountering of the telephone cable meant that for a distance of 200 to 250 feet beside the pavement of the airport road work could not proceed as planned (Tr. 914-16). Mr. Caldwell's testimony did not indicate that operations in any other area were delayed (Tr. 913-18) and he stated that the delay involving relocation of the telephone cable overlapped the delay caused by the absence of truck drivers (Tr. 916; Claim Q, supra).

Mr. Allen testified that the relocation of the cable limited the appellant's operation only in a ten to

44 Duralab Equipment Corporation, GSBCA No. 3412-R (July 10, 1972), 72-2 BCA par. 9571, at 44,591 (“*** It is not the Government's burden to prove that Appellant was able to foresee a continuing labor problem with draftsmen. As our initial decision clearly spelled out, it was Appellant's responsibility, when it submitted its bid on the project, to see to it that it would have adequate staffing to do the required work.")

45 Appeal File, Volume II, Claim Brief of June 28, 1968, pp. 50–51.

fifteen foot area adjacent to the airport road and that access roads nearby were fine-graded during the period in question (Tr. 2833-37).

Decision

Examination of the project diaries. (Government's Exhibit JJJ) discloses that the appellant was performing other grading operations during the period in question on the days when the weather and ground conditions permitted. Based upon the testimony narrated above and the information contained in the project diaries, we find that the appellant has failed to show that the restriction of its operations in the area of the telephone cable had any effect on the overall progress of the job.

The request for an extension of time is therefore denied.

Claim S(1)

The appellant alleged that due to the Government's unreasonable requirements and restrictions, interference in the progress of the work, wrongful control of the progress of the work and the extra work required to be performed, it is entitled to an equitable adjustment of 261 days.

This claim is essentially a combination of claims A through R, expanded and illustrated by a critical. path chart (Appellant's Exhibit No. 25) to show a relationship between the various claims. Mr. Caldwell testified that the critical path chart was prepared in the fall of 1967 from his memory and what few

May 30, 1973

notes and markings he had made on the plans and from conversations that he could recall as to what he generally planned to do (Tr. 957). Mr. Caldwell stated that generally the critically path chart represented his thinking at the time of bidding, but not in every case since he did not know how to make such a chart at that time (Tr. 959-60). He further stated that the critical path chart "assumes that the contractor is solid gold, that he is doing exactly what he is supposed to do" (Tr. 1007-08).

The request for an extension of contract time is based on the Government charging time against the contract on days when no work was performed on critical path items (Tr. 1000-05). Mr. Caldwell alleged that in section one of the critical path chart (Appellant's Exhibit 26) the Government charged 171 contract days from February 4, 1964 through August 31, 1964, while only 27 days were actually worked on critical path items (Tr. 1000–01).

In explaining why this request started on February 4, 1964, Mr. Caldwell testified as follows:

Thats the first time-the first point in the job that we felt like-it happens to be the completion date of the structure at 89, and that was our first critical item. We feel like that's the first place that we are entitled to ask for an increase. In other words, time charged under structure at 78 and the time before it was started, we feel like we could have started it sooner or we could have completed it a little sooner. So, we didn't feel like any of the Government's claims were effective during that period. (Tr. 1005.)

508-212-73- -6

Mr. Banks testified that a critical path is of no value unless it is prepared beforehand and an honest effort is made to follow it during construction and unless provisions are made to get back on the critical path when operations have fallen behind. schedule (Tr. 1837-38). Mr. Banks pointed out that the plan of operation submitted by Mr. Caldwell on November 11, 1963, was not a critical path plan and was stated in the most general terms (Tr. 1837). The primary consideration in preparing a critical path chart is to determine the sequence of activities for each activity that is dependent on some previous activity, but Mr. Banks stated that there were numerous occasions in the appellant's critical path charts where there was no indication that the proper sequence had been considered (Tr. 1837). For example, Mr. Banks noted that the appellant's critical path charts showed the beginning of fills to be dependent on the completion of bridge or culvert structures, whereas most of the fills could be placed as the structures were built (Tr. 183839). Mr. Banks was unable to check Mr. Caldwell's assumptions on which the critical path chart was based (Appellant's Exhibit 32) due to insufficient information as to the basis for the assumptions (Tr. 1840).

Decision

We are not prepared to accept Mr. Caldwell's assumption that the contractor was "solid gold" and was doing exactly what he was supposed

to do. Mr. Stinson testified that no fine grading was performed in 1964 and that no drilling for A-4 borrow material was performed until after the winter shutdown in 1964 (Tr. 2056-57), which was too late to obtain material from the bottom lands flooded before the beginning of construction in 1965. Mr. Giles testified that he did not have enough equip

ment to do the job and he requested Mr. Caldwell to furnish more equipment in 1965 so that the project could be completed on time, but was told that the appellant's equipment was in use on other projects and not available at that time (Tr. 299697). Such testimony on the part of two men who were employed in supervisory capacities by the appellant tends to negate Mr. Caldwell's assumption that the contractor was "solid gold" and was doing exactly what he was supposed to do.

Mr. Caldwell's testimony concerning his "feeling" that the Government's time computation was not effective after February 4, 1964, affords no factual basis for a conclusion that contract time should be charged for critical path working days rather than for calendar days as set forth in the contract. We find that the appellant has not sustained the burden of proving that a critical path chart compiled after termination of appellant's contract consitutes a proper basis for computation of contract time.

46

In determining the equitable adjustment of contract time to which

48 FP-61, Section 8.6, Contract Time and Section 8.7, Suspension of Work.

[blocks in formation]

Termination of Contract

The appellant also alleged that its right to proceed was wrongfully terminated by the Government. In addition, the appellant denied any responsibility for excess costs and contested the propriety of the liquidated damages assessed by the Government for delayed performance. Based upon the position so taken, the appellent asked that it be paid immediately the amount of the earnings retained ($145,472.36) and

the amount allowed in the contract

ing officer's decision in Claim E ($2,607).

We note that the basis for termination for default of the appellant's right to proceed with the contract work was the finding by the contracting officer that the appellant had failed to prosecute the work with such diligence as to insure completion within the time authorized

47 Appeal File, Volume II, letter of March 1, 1967.

May 30, 1973

by the contract. The letter stated that the contract work was 63% complete and the contract time was overrun by four days as of January 15, 1967.

The allowance of contract time for the liability found to be present with respect to Claims A, B, C and E above will necessarily extend the completion date beyond the date contemplated at the time of the notice of termination for default.

titled under the guidelines established in this opinion. We therefore also defer any decision with respect to the Government's claim for excess costs and liquidated damages.

SUMMARY

1. To the extent indicated in the opinion, the Board has found for the appellant on the question of liability with respect to Claims A, B,

While there is a serious question C, E, and M.

as to whether the time extension to which the appellant may be entitled by reason of the findings made herein as to liability, we cannot exclude the possibility that the proof offered by the appellant may convince the contracting officer that the termination for default was improper. Accordingly, we defer our decision on the question of the propriety of the default termination pending a determination by the contracting officer of the time extension to which the appellant is en

48 We note, for example, that if the time extension figures used in the claim brief of June 28, 1968 (Appeal File. Volume II), were to be accepted as determinative of the maximum extension in time to which the appellant is entitled by reason of the claim items for which liability was found to exist (Excluding Claim M for which no time extension was granted) the total entitlement for time extension would amount to only 71 days even if no adjustment were to be made for the fact that total liability was not found to be present. We also note, however, that with respect to Claim E the Government conceded at the hearing that the contractor was entitled to drying and processing costs on 15,140 square yards over and above the 23,700 square yards for which compensation was found to be due by the contracting officer (i.e., an increase of 63%) and that in a number of instances the Government allowed more square yards for drying and processing in the cuts than the appellant had claimed.

2. The equitable adjustment in time or money to which the appellant is entitled under the guidelines established in the opinion, supra, shall be determined by the contracting officer on the basis of the evidence of record or such additional evidence as the contracting officer shall request or the appellant shall submit within ninety days of the date of receipt of this opinion by appellant, or such additional time as shall be mutually agreed upon.

3. In the absence of mutual agreement as to particular claim items, the contracting officer shall make findings of fact as to the equitable adjustments to which the appellant is entitled by reason of this opinion from which a further appeal may be taken to the Board.

4. No final determination has been made as to the propriety of terminating the contractor's right to proceed for default or as to the appellant's liabiilty for the excess costs claimed by the Government pending the contracting officer's determination of the additional time to which the appellant is entitled by

reason of the Board's findings, tion of Mandatory Safety Standards: supra. Publication

5. Except as hereinbefore expressly granted, the appeal is denied.

G. HERBERT PACKWOOD, Member.

WE CONCUR:

WILLIAM F. MCGRAW, Chairman.

SHERMAN P. KIMBALL, Member.

GATEWAY COAL COMPANY

2 IBMA 107

Decided May 30, 1973

Appeal by Gateway Coal Company from a decision by Administrative Law Judge M. P. Littlefield (formerly "Hearing Examiner") denying a petition for modification of application of mandatory automatic fire detection and suppression safety standards in section 311 of the Federal Coal Mine Health and Safety Act of 1969 and implementing regulations.

Reversed and modification granted in part.

Federal Coal Mine Health and Safety Act of 1969: Modification of Application of Mandatory Safety Standards: Waiver of Participation

Where a party has had actual notice of all proceedings relating to a petition for modification of a mandatory safety standard and elects not to participate, he shall be deemed to have waived any objection to the petition.

Federal Coal Mine Health and Safety Act of 1969: Modification of Applica

Where a proposed modification is amended subsequent to publication in the Federal Register, strict compliance with the provisions of section 301(c) of the Act requires republication of the new proposal.

Federal Coal Mine Health and Safety Act of 1969: Modification of Application of Mandatory Safety Standards: Stipulations

A stipulation of facts and conditions arrived at after extensive consultation and study by technical experts of the parties, in the absence of objection, and with agreement of the Bureau that the proposal will guarantee no less than the same measure of protection as the mandatory standards, shall be sufficient to support a grant of a modification of the application of mandatory standards.

APPEARANCES: Daniel R. Minnick, Esquire, for appellant, Gateway Coal Company; Robert W. Long, Associate Solicitor, J. Philip Smith, Assistant Solicitor, I. Avrum Fingeret and Bernard M. Bordenick, Trial Attorneys, for appellee, U.S. Bureau of Mines.

OPINION BY THE BOARD INTERIOR BOARD OF MINE OPERATIONS APPEALS

Factual and Procedural
Background

Gateway Coal Company (Gateway) has appealed a decision by the Administrative Law Judge denying Gateway's petition for modification of the application of certain mandatory fire safety standards to Gateway Mine. Specifically, Gateway

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