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tractor's responsibility in these re- fifteen foot area adjacent to the airspects is a continuing one."
port road and that access roads The claim is therefore denied. nearby were fine-graded during the
period in question (Tr. 2833–37). Claim R
Decision The appellant alleged that it encountered a telephone cable under Examination of the project the access connection to the airport diaries (Government's Exhibit road which was not anticipated and JJJ) discloses that the appellant which was not shown in the contract was performing other grading operdocuments or plans. Appellant re
ations during the period in question quested an extension of twelve con- on the days when the weather and tract days for the period June 17, ground conditions permitted. Based 1966 to July 2, 1966, when it was upon the testimony narrated above unable to proceed with what it has and the information contained in described as controlling items of the project diaries, we find that the work.45
appellant has failed to show that the Mr. Caldwell testified that the restriction of its operations in the unexpected encountering of the tele- area of the telephone cable had any phone cable meant that for a dis- effect on the overall progress of the
a tance of 200 to 250 feet beside the job. pavement of the airport road work The request for an extension of could not proceed as planned (Tr. time is therefore denied. 914–16). Mr. Caldwell's testimony did not indicate that operations in
Claim S(1) any other area were delayed (Tr. The appellant alleged that due to 913–18) and he stated that the delay the Government's unreasonable reinvolving relocation of the tele- quirements and restrictions, interphone cable overlapped the delay ference in the progress of the work, caused by the absence of truck
wrongful control of the progress of drivers (Tr. 916; Claim Q, supra). the work and the extra work re
Mr. Allen testified that the relo- quired to be performed, it is entitled cation of the cable limited the ap- to an equitable adjustment of 261 pellant's operation only in a ten to
This claim is essentially a combi44 Duralab Equipment Corporation, GSBCA nation of claims A through R, exNo. 3412-R (July 10, 1972), 72-2 BCA par. 9571, at 44.591 ("* *. It is not the Govern- panded and illustrated by a critical ment's burden to prove that Appellant was
path chart (1ppellant's Exhibit No. able to foresee a continuing labor problem with draftsmen. As our initial decision clearly
25) to show a relationship between spelled out, it was Appellant's responsibility, the various claims. Mr. Caldwell when It submitted its bid on the project, to see to it that it would have adequate staffing
testified that the critical path chart to do the required work.")
was prepared in the fall of 1967 45 Appeal File, Volume II, Claim Brief of June 28, 1968, pp. 50–51.
from his memory and what few May 30, 1973 notes and markings he had made on Mr. Banks testified that a critical the plans and from conversations path is of no value unless it is prethat he could recall as to what he pared beforehand and an honest efgenerally planned to do (Tr. 957). fort is made to follow it during conMr. Caldwell stated that generally struction and unless provisions are the critically path chart repre- made to get back on the critical path sented his thinking at the time of when operations have fallen behind bidding, but not in every case since schedule (Tr. 1837–38). Mr. Banks he did not know how to make such a pointed out that the plan of operachart at that time (Tr. 959–60). He tion submitted by Mr. Caldwell on further stated that the critical path November 11, 1963, was not a critichart assumes that the contractor cal path plan and was stated in the is solid gold, that he is doing exactly most general terms (Tr. 1837). The what he is supposed to do” (Tr. primary consideration in preparing 1007–08).
a critical path chart is to determine The request for an extension of the sequence of activities for each contract time is based on the activity that is dependent on some Government charging time against previous activity, but Mr. Banks the contract on days when no work
stated that there were numerous ocwas performed on critical path casions in the appellant's critical items (Tr. 1000-05). Mr. Caldwell path charts where there was no inalleged that in section one of the dication that the proper sequence critical path chart (Appellant's Ex
had been considered (Tr. 1837). For hibit 26) the Government charged example, Mr. Banks noted that the 171 contract days from February 4, appellant's critical path charts 1964 through August 31, 1964, while showed the beginning of fills to be only 27 days were actually worked dependent on the completion of on critical path items (Tr. 1000-01). bridge or culvert structures, whereas In explaining why this request
most of the fills could be placed as started on February 4, 1964, Mr.
the structures were built (Tr. 1838– Caldwell testified as follows:
39). Mr. Banks was unable to check
Mr. Caldwell's assumptions on Thats the first time—the first point in which the critical path chart was the job that we felt like it happens to be
based (Appellant's Exhibit 32) due the completion date of the structure at
to insufficient information as to the 89, and that was our first critical item. We feel like that's the first place that we
basis for the assumptions (Tr. are entitled to ask for an increase. In
1840). other words, time charged under struc
Decision ture at 78 and the time before it was started, we feel like we could have started
We are not prepared to accept Mr. it sooner or we could have completed it a
Caldwell's assumption that the conlittle sooner. So, we didn't feel like any of the Government's claims were effective
tractor was “solid gold” and was during that period. (Tr. 1005.)
doing exactly what he was supposed
to do. Mr. Stinson testified that no the appellant is entitled, the confine grading was performed in 1964 tracting officer will be governed by and that no drilling for A 4 borrow our finding of liability on the part material was performed until after of the Government with respect to the winter shutdown in 1964 (Tr. Claims A, B, C and E, supra. 2056-57), which was too late to obtain material from the bottom lands
Claim S(2) flooded before the beginning of con
This claim is an expression of the struction in 1965. Mr. Giles testified
total claim for an equitable adjustthat he did not have enough equip
ment in terms of dollars. The hearment to do the job and he requested ing was limited to the issue of liaMr. Caldwell to furnish more equip. bility, with the issue of quantum rement in 1965 so that the project served by agreement of the parties. could be completed on time, but was told that the appellant's equipment Consequently, no finding as to this told that the appellant's equipment claim is appropriate and none is was in use on other projects and not
made. available at that time (Tr. 2996– 97). Such testimony on the part of Termination of Contract two men who were employed in supervisory capacities by the appel- The appellant also alleged that its lant tends to negate Mr. Caldwell's right to proceed was wrongfully assumption that the contractor was terminated by the Government. In "solid gold” and was doing exactly addition, the appellant denied any what he was supposed to do. responsibility for excess costs and Mr. Caldwell's testimony concern
contested the propriety of the liqing his "feeling” that the Govern
uidated damages assessed by the ment's time computation was not ef
Government for delayed performfective after February 4, 1964, af
ance. Based upon the position so fords no factual basis for a conclu
taken, the appellent asked that it be sion that contract time should be paid immediately the amount of the charged for critical path working earnings retained ($145,472.36) and
$ days rather than for calendar days the amount allowed in the contractas set forth in the contract.46 We ing officer's decision in Claim E find that the appellant has not sus
($2,607). tained the burden of proving that a
We note that the basis for termicritical path chart compiled after
nation for default 47 of the appeltermination of appellant's contract
lant's right to proceed with the conconsitutes a proper basis for compu
tract work was the finding by the tation of contract time.
contracting officer that the appellant
had failed to prosecute the work In determining the equitable ad
with such diligence as to insure comjustment of contract time to which
pletion within the time authorized
44 FP-61, Section 8.6, Contract Time and Section 8.7, Suspension of Work.
4. Appeal File, Volume II, letter of March 1, 1967.
May 30, 1973
by the contract. The letter stated titled under the guidelines estabthat the contract work was 63% lished in this opinion. We therefore complete and the contract time was also defer any decision with respect overrun by four days as of Janu- to the Government's claim for exary 15, 1967.
cess costs and liquidated damages. The allowance of contract time for the liability found to be present
SUMMARY with respect to Claims A, B, C and E above will necessarily extend the
1. To the extent indicated in the completion date beyond the date opinion, the Board has found for contemplated at the time of the the appellant on the question of lianotice of termination for default.
bility with respect to Claims A, B, While there is a serious question C, E, and M. as to whether the time extension to 2. The equitable adjustment in which the appellant may be entitled time or money to which the appelby reason of the findings made
lant is entitled under the guidelines herein as to liability, we cannot
established in the opinion, supra, exclude the possibility that the
shall be determined by the contractproof offered by the appellant may ing officer on the basis of the eviconvince the contracting officer that
dence of record or such additional the termination for default was im- evidence as the contracting officer proper. Accordingly, we defer our shall request or the appellant shall decision on the question of the pro
submit within ninety days of the priety of the default termination date of receipt of this opinion by pending a determination by the appellant, or such additional time contracting officer of the time exten
as shall be mutually agreed upon. sion to which the appellant is en
3. In the absence of mutual agree
ment as to particular claim items, 4 We note, for example, that if the time extension figures used in the claim brief of
the contracting officer shall make June 28. 1968 (Appeal File. Volume II), were findings of fact as to the equitable to be accepted as determinative of the maxi
adjustments to which the appellant mum extension in time to which the appellant is entitled by reason of the claim items is entitled by reason of this opinion for which liability was found to exist (Exclud
from which a further appeal may ing Claim M for which no time extension was granted) the total entitlement for time ex- be taken to the Board. tension would amount to only 71 days even if no adjustment were to be made for the
4. No final determination has fact that total liability was not found to be been made as to the propriety of present. We also note, however, that with respect to Claim E the Government conceded
terminating the contractor's right at the hearing that the contractor was en- to proceed for default or as to the titled to drying and processing costs on 15,140 square yards over and above the 23,700 square appellant's liabiilty for the excess yards for which compensation was found to costs claimed by the Government be due by the contracting officer (ie., an increase of 63%) and that in a number of
pending the contracting officer's deinstances the Government allowed more square termination of the additional time yards for drying and processing in the cuts than the appellant had claimed,
to which the appellant is entitled by
reason of the Board's findings, tion of Mandatory Safety Standards: supra.
Publication 5. Except as hereinbefore ex
Where proposed modification is pressly granted, the appeal is
amended subsequent to publication in the denied.
Federal Register, strict compliance with
the provisions of section 301(c) of the G. HERBERT PACKWOOD, Member. Act requires republication of the new
proposal WE CONCUR:
Federal Coal Mine Health and Safety WILLIAM F. McGRAW, Chairman.
Act of 1969: Modification of Applica
tion of Mandatory Safety Standards: SHERMAN P. KIMBALL, Member. Stipulations
A stipulation of facts and conditions ar
rived at after extensive consultation and GATEWAY COAL COMPANY
study by technical experts of the parties,
in the absence of objection, and with 2 IBMA 107
agreement of the Bureau that the pro Decided May 30, 1973 posal will guarantee no less than the same
measure of protection as the mandatory Appeal by Gateway Coal Company
standards, shall be sufficient to support from a decision by Administrative Law
a grant of a modification of the applica
tion of mandatory standards. Judge M. P. Littlefield (formerly "Hearing Examiner") denying a peti- APPEARANCES: Daniel R. Minnick, tion for modification of application of Esquire, for appellant, Gateway Coal mandatory automatic fire detection and
Company; Robert W. Long, Associate suppression safety standards in sec- Solicitor, J. Philip Smith, Assistant tion 311 of the Federal Coal Mine Solicitor, I. Avrum Fingeret and BerHealth and Safety Act of 1969 and nard M. Bordenick, Trial Attorneys, implementing regulations.
for appellee, U.S. Bureau of Mines. Reversed and modification granted
OPINION BY THE BOARD in part.
INTERIOR BOARD OF MINE Federal Coal Mine Health and Safety
OPERATIONS APPEALS Act of 1969: Modification of Application of Mandatory Safety Standards: Factual and Procedural Waiver of Participation
Background Where a party has had actual notice of
Gateway Coal Company (Gateall proceedings relating to a petition for modification of a mandatory safety stand
way) has appealed a decision by the ard and elects not to participate, he shall Administrative Law Judge denying be deemed to have waived any objection Gateway's petition for modification to the petition.
of the application of certain mandaFederal Coal Mine Health and Safety tory fire safety standards to GateAct of 1969: Modification of Applica- way Mine. Specifically, Gateway