CONTRACTS-Con.
DISPUTES AND REMEDIES-Con.
Equitable Adjustments-Con.
tests could properly turn
on the results of the tests
inasmuch as the Inspec-
tion and Acceptance
Clause of the General
Provisions (Standard
Form 23-A, April 1961
Edition) allows the Gov-
ernment at any time be-
fore final acceptance of
the entire work to request
the removal of completed
work at the contractor's
expense if the work does
not conform to contract
requirements and for an
equitable adjustment to
the contractor if the work
does conform to the con-
tract...
2. Where the evidence failed to
support the contractor's
claim as to the amount of
extra repair work and
testing required by the
Government and the
quantity of pipe which
was improperly rejected
and there was substantial
evidence that the con-
tractor had underbid the
work and that a signifi-
cant portion of the con-
tractor's costs in addition
to its estimates was due
to factors such as un-
proven or unsuitable ma-
chinery and equipment,
improper maintenance
and inexperienced and
unskilled labor, justifica-
tion for the total cost
method of computing an
equitable adjustment has
not been established. The
Board holds that the
equitable adjustment due
the contractor may prop-
CONTRACTS-Con.
DISPUTES AND REMEDIES-Con.
Equitable Adjustments-Con.
erly be computed on the
basis of summaries of
costs from appellant's
books and records, over-
ruling a Government ob-
jection to such cost pres-
entation made for the
first time on brief that
the books and records
from which the summar-
ies were prepared were
not available at the hear-
ing, since the record re-
vealed that appellant had
repeatedly offered to
make its records available
for audit by the Govern-
ment prior to the hearing.
3. A contractor's claim for in-
terest as part of an equi-
table adjustment was de-
nied where there was no
evidence of specific loan
transactions or of pay-
ments of interest in the
record....
4. Where the Government is
obligated to "compen-
sate" the contractor for
restoring damaged work
under a contract pro-
vision entitled "Contrac-
tor's Responsibility for
Work," the word "com-
pensate" is considered to
have a different and more
limited meaning than the
words "equitable adjust-
ment" used in other pro-
visions of the contract_ _ _
Jurisdiction
1. The Board denied the Gov-
ernment's motions to dis-
miss as beyond the juris-
diction of the Board, the
contractor's claims to be
compensated for ineffi-
ciency resulting from the
CONTRACTS-Con.
DISPUTES AND REMEDIES-Con.
Jurisdiction-Con.
interim wrongful rejec-
tion of substantial quanti-
ties of pipes and for reim-
bursement of a sum paid to
its subcontractor because
of the unavailability of
pipe for laying which was
allegedly attributable to
the Government's in-
correct interpretation of
the contract as to permis-
sible internal diameters of
the pipe. On the merits
the latter claim was
denied, since Government
responsibility for
payment had not been
established.._.
2. A Government motion to
dismiss as beyond the
jurisdiction of the Board
a claim arising out of
severe and arbitrary in-
spection was denied, the
Board holding that such
a claim was not readily
distinguishable from
claims based upon the
imposition of excessive
standards of workman-
ship which claims are
clearly cognizable by the
Board as constructive
changes. A contractor's
claim for lost profits in
such circumstances was
dismissed as beyond the
jurisdiction of the Board
since the concept of an
equitable adjustment ex-
cludes anticipated or un-
earned profits on work
not accomplished._____
a supply contract
which provided for the
delivery and installation
of a television antenna
system did not contain a
CONTRACTS-Con.
DISPUTES AND REMEDIES-Con.
Jurisdiction-Con.
"Suspension of the
Work" or other "pay for
delay" clause and the
Government issued a
modification postponing
the delivery date be-
cause the building in
which the system was to
to be installed had not
been completed, the
Board dismissed as be-
yond its jurisdiction the
contractor's claim for
costs incurred in main-
taining a crew in read-
iness to perform the in-
stallation inasmuch as the
postponement of the de-
livery date was not a
change within the mean-
ing of the "Changes"
clause..
Substantial Evidence
1. Expert testimony giving esti-
mates of what would be
the cost for a reasonable
contractor to restore
damage to a road project
and to finish the roadway
is not accepted where the
testimony is unclear and
ambiguous respecting the
applicable time period,
whether all elements of
costs and profit are in-
cluded, and whether the
task being estimated was
comprehended by the ex-
1. Under the Standard Form
Supply Contract Default
clause, a termination for
default, following accept-
ance, of a contract for
the purchase of a scan-
1. Under the Standard Form
Supply Contract Default
clause, a termination for
default, following accept-
ance, of a contract for the
purchase of a scanning
electron microscope on
the grounds it was defec-
tive, latently, and by vir-
tue of various breaches of
warranty, was improper
in the absence of a notice
preceding the termina-
tion affording the con-
tractor at least ten days
within which to cure the
defects, and was, accord-
ingly, treated as a ter-
mination for the con-
venience of the Govern-
ment_
FORMATION AND VALIDITY
Authority to Make
1. The Board denies a construc-
tion contractor's claim
for the cost of construct-
ing a dike which was not
a contract requirement
where it finds: (i) that
the dike was constructed
of excess material from a
CONTRACTS-Con.
FORMATION AND VALIDITY-Con.
Authority to Make-Con.
sewage lagoon, excava-
tion of which was a con-
tract requirement; (ii) a
reasonable construction
of the contract would
permit the contracting
officer to direct the place-
ment of excess material
from the lagoon at any
place within one-half mile
of the site and no part of
the dike was in excess of
one-half mile from the
site; (iii) construction of
the dike was not ordered
or approved by anyone
having authority to com-
mit the Government; and
(iv) the contractor failed
to protest to the con-
tracting officer when the
alleged extra work was
performed...
Cost-Type Contracts
1. Where a contractor under
a cost-plus-fixed-fee con-
tract gave notice of an
impending overrun but
proceeded with perform-
ance without being ad-
vised that additional
funds had been provided
as specified in the Limita-
tion of Cost Clause in
circumstances where the
evidence did not establish
that the contractor was
directed or induced to
continued performance,
that there was any under-
standing that additional
funds would be provided,
or that a change to the
contract had occurred,
the contractor's claim for
overrun is denied on the
grounds that the
FORMATION AND VALIDITY-Con.
Cost-Type Contracts-Con.
tractor had proceeded Page
with performance at his
own risk and that whether
additional funds would be
provided was within the
discretion of the con-
tracting officer.
PERFORMANCE or default
Acceptance of Performance
1. Where substantial quantities
of pipes which had been
accepted were rejected on
a subsequent inspection,
and the evidence did not
establish that the pipes
did not conform to con-
tract requirements, the
subsequent rejection of
the pipes was improper
even though the initial
acceptance was not the
final acceptance contem-
plated by the contract
and even though it is a
general rule that the bur-
den is on the seller to
prove that goods rejected
prior to acceptance con-
form to contract require-
ments. The Board holds
that the initial accept-
ance, in the absence of
evidence to the contrary,
established that the pipes
conformed to the require-
ments of the contract___
2. Under the Standard Form
Supply Contract Default
clause, a termination for
default, following accept-
ance, of a contract for the
purchase of a scanning
electron microscope on
the grounds it was defec-
tive, latently, and by
virtue of various breaches
of warranty, was im-
proper in the absence of a
PERFORMANCE OR DEFAULT-Con.
Acceptance of Performance-Con.
notice preceding the ter- Page
mination affording the
contractor at least ten
days within which to cure
the defects, and was,
accordingly, treated as a
termination for the con-
venience of the Govern-
ment....
Excusable Delays
1. The Board denies a Govern-
ment motion for recon-
sideration where it finds
that a diary entry con-
tained in an exhibit of-
fered in evidence by the
Government, together
with the testimony of a
witness for the appellant
created an inference that
the Government was re-
sponsible for an indeter-
minate portion of a pro-
tracted delay in removing
utility poles from the
work area on a road con-
struction job and that
the
Government failed
to rebut such inference
even though information
having a direct bearing
on the propriety of liqui-
dated damages assessed
for delayed performance
was apparently within
its possession or was more
accessible to it than it
was to the appellant.
The Board therefore re-
affirmed its prior hold-
ings that no attempt
should be made to ap-
portion the delay between
the parties and that the
contract time should be
extended to the date the
contract was determined
to be substantially com-
plete....
CONTRACTS-Con.
PERFORMANCE OR DEFAULT-Con.
1. Where substantial quantities
of pipes which had been
accepted were rejected
on a subsequent inspec-
tion, and the evidence did
not establish that the
pipes did not conform to
contract requirements,
the subsequent rejection
of the pipes was im-
proper even though the
initial acceptance was not
the final acceptance con-
templated by the con-
tract and even though it
is a general rule that the
burden is on the seller
to prove that goods re-
jected prior to accept-
ance conform to contract
requirements. The Board
holds that the initial ac-
ceptance, in the absence
of evidence to the con-
trary, established that
the pipes conformed to
the requirements of the
contract.
1. Remedies for alleged breach
of a private agreement
between parties who have
conflicting grazing lease
applications must be
sought in the courts, not
in the Department of the
Interior, which has no
jurisdiction over such
matters.
DELEGATION OF AUTHORITY
1. Upon request of the State
Director, a District Man-
ager, Bureau of Land
Management, who has
DELEGATION OF AUTHORITY-Con.
GENERALLY-Con.
authority to enter into
timber sale contracts also
has authority to ter-
minate such contracts
when to do so would be
in the best interest of the
Government.
FEDERAL COAL MINE HEALTH
AND SAFETY ACT OF 1969
1. It is error for an Administra-
tive Law Judge to fail to
to make appropriate find-
ings of fact and conclu-
sions of law and to show
the reasons therefor in
his decision in any pro-
ceeding brought pursuant
to section 109 of the Act
(30 U.S.C. § 819) with
respect to the occurrence
of each violation alleged
and as to each of the
statutory criteria re-
quired by such section to
to be considered. Where
such findings and con-
clusions are merely not
labeled or mislabeled the
Board will not normally
remand; however, where
these requisites are ob-
fuscated or absent, а
remand may be necessary
to permit proper adminis-
trative and judicial
review_
ADMINISTRATIVE PROCEDURE
1. The Board may be persuaded
by the findings of fact in
an arbitration proceeding
where they are made a
part of the record, but
the Board is not bound or
controlled thereby -----
|