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character provided for in this contract.” 2 The natural sense of the language used imports that both categories are limited to physical conditions which exist when the contract is made and that neither comprehends physical conditions which come into being only after the contract has been executed.3
The circumstances of which appellant complains plainly do not amount to a changed condition within the meaning of Clause 4. The incompleteness of the towers at the time when the contract was made did not amount to a changed condition since such incompleteness was neither latent, as required for conditions of the first category, nor unknown, as required for those of the second. The subsequent delay in completing the towers did not amount to a changed condition since delay is not a physical condition at the site, as required for conditions of both categories. The physical difference between the incomplete and the complete towers likewise did not amount to a changed condition since such difference was not a condition that existed when the contract was formed, but was a condition that arose only after the contract had been made. For like reasons, it has been held in other appeals that Clause 4 is inapplicable to work dislocations brought about through the failure of the Government to take timely or adequate measures for clearing the site, * erecting structures, furnishing materials, or otherwise discharging its own obligations under the contract.?
2 The full text of the clause reads as follows:
"4. CHANGED CONDITIONS. The contractor shall promptly, and before such conditions are disturbed, notify the contracting officer in writing of: (1) subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract. The contracting officer shall promptly investigate the conditions, and if he finds that such conditions do so materially differ and cause an increase or decrease in the cost of, or the time required for, performance of this contract, an equitable adjustment shall be made and the contract modified in writing accordingly. Any claim of the contractor for adjustment hereunder shall not be allowed unless he has given notice as above required; provided that the contracting officer may, if he determines the facts so justify, consider and adjust any such claim asserted before the date of final settlement of the contract. If the parties fail to agree upon the adjustment to be made, the dispute shall be determined as provided in Clause 6 hereof."
3 Montgomery-Macri Company and Western Line Construction Company, Inc., IBCA-59 and IBCA-72 (June 28, 1963), 70 I.D. 242, 253–55, 1963 BCA par. 3819, pp. 19,010–11, 5 Gov. Contr. 419, and authorities cited therein.
* Montgomery-Macri Company and Western Line Construction Company, Inc., supra, note 3.
5 Flora Construction Company, IBCA-101 (September 4, 1959), 66 I.D. 315, 322–25, 328–30, 59-2 BCA par. 2312, 1 Gov. Contr. 647-50.
6 Hagerman Construction, IBCA-183 (January 21, 1959), 59–1 BCA par. 2065, 1 Gov. Contr. 97; Weardco Construction Corporation, IBCA-48 (September 30, 1957), 64 I.D. 376, 378-82, 57-2 BCA par. 1440 ; Tucker McClure, ASBCA No. 193 (August 31, 1950).
? Seal and Company, IBCA-181 (December 23, 1960), 67 I.D. 435, 440-43, 61-1 BCA par. 2887, 3 Gov. Contr. 39 ; Nolan Bros., Inc., ASBCA No. 4846 (June 18, 1958), 58–2 BCA par. 1843; Condon-Cunningham Company and Paul B. Reis, W. D. BCA No. 1355 (April 23, 1946).
March 12, 1964
Appellant argues that the delay in completion of the towers was due to no fault or negligence on its part, and that the extra moving in and out expense could not have been reasonably foreseen when its bid was prepared. These circumstances, as the authorities pre
, viously cited show, would be pertinent in establishing a claim for a changed condition only if the delay in completing the towers or the extra moving in and out expense had been caused by a physical condition at the site that existed when the contract was formed; and then only if appellant had been reasonably unaware of the existence of such condition, either because of what was said about the site in the contract, or because of the hidden and exceptional nature of the condition itself. Here, however, it is conceded that the incompleteness of the towers—the only relevant physical condition at the site-was known to appellant when its bid was prepared.
Furthermore, even if it could be said that a changed condition had been encountered, appellant would not be entitled to additional compensation for the extra moving in and out expense alleged to have been sustained. Equitable adjustment provisions such as those of Clause 4 have been interpreted by the Supreme Court as meaning that where a changed condition (or a change under Clause 3) has the effect merely of delaying the performance of work not otherwise altered, the contractor is only entitled to an extension of time, but not to an increase in monetary compensation. In the instant case the alleged failure of the Government to have the towers ready when appellant needed them had the effect of postponing the time when the conductor could be strung at those towers, but did not alter either the result which the contract required appellant to achieve or the methods of stringing requisite for its accomplishment. Thus, the claim here put forward is one for consequential damages flowing from delay, for which additional compensation would not in any event be allowable under Clause 4 (or Clause 3).'
The conclusions stated in the foregoing discussion dispose of the only reasons which appellant has advanced for reversal of the contracting officer's decision. The situation, hence, appears to call for application of the widely recognized principle that a claim for additional compensation on account of delay by the Government in performing its own obligations under a contract which contains a standard-form “Disputes" clause-such as Clause 6 of the instant contract-is not a claim for relief under the contract that the contracting officer or a board of contract appeals would have authority to adjudicate by virtue of the “Disputes" clause. In the absence of provisions specifically authorizing administrative payment for delay by the Government it is a claim for breach of contract over which the Board of Contract Appeals does not have jurisdiction.10
& United States v. Rice, 317 U.S. 61 (1942).
* Seal and Company (reconsideration), IBCA-181 (March 28, 1961), 68 I.D. 94. 96, 98-99, 61-1 BCA par. 2988, 3 Gov. Contr. 298(j); Utah Construction Company, IBCA133 and IBCA-140 (June 10, 1960), 67 I.D. 248, 253–54, 60-1 BCA par. 2649, 2 Gov. Contr. 397 ; Weardco Construction Corporation, supra note 6; see Weldfab, Incorporated, IBCA-268 (August 11, 1961), 68 I.D, 241, 245–48, 61-2 BCA par. 3121, 3 Gov. Contr. 500. 10 Jensen-Rasmussen and Company and B-E-C-K Corporation, IBCA-363 (March 14, 1963), 1963 BCA par. 3687, 5 Gov. Contr. 183(e); Martin K. Eby Construction Company, Ino., IBCA-355 (March 8, 1963), 1963 BCA par. 3672, 5 Gov. Contr. 183(e) ; Northolt Electrio Company and William Collins & Sons, Inc., IBCA-279 (May 26, 1961), 68 I.D. 148, 61-1 BCA par. 3060, 3 Gov. Contr. 358 (d); Allied Contractors, Inc., IBCA-265 (May 10, 1901), 68 ID, 145, 61-1 BCA par. 3047, 3 Gov. Contr. 348; McCready Reforestation Company, IBCA-167 (June 23, 1959), 59–1 BCA par. 2239, 1 Gov. Contr. 471.
HERBERT J. SLAUGHTER, Member.
Paul H. GANTT, Chairman.
CHARLES J. BABINGTON
Decided March 20, 1964
Oil and Gas Leases: Description of Land Surveys of Public Lands: Gen
erally A description in an oil and gas lease offer for acquired land of land in a
right-of-way which is excluded from the land applied for is insufficient where the right-of-way is described only by giving the course and distance of the center line and the width of the right-of-way and by tieing
the description to a quarter-quarter section corner. Oil and Gas Leases: Description of Land Where an oil and gas offer for land described as the 572842 of a section is deficient because it improperly describes land in the $42542 which is to be excluded from the offer, the offer cannot be accepted for the 81%SE' because it is ascertained that the excluded land lies in the S/SW14 of the section.
APPEAL FROM THE BUREAU OF LAND MANAGEMENT
Charles J. Babington has appealed to the Secretary of the Interior from a decision dated June 5, 1962, by which the Division of Ap
March 20, 1964 peals, Bureau of Land Management, affirmed a decision of the Division of Field Services, dismissing his protest against the prospective issuance of an oil and gas lease to Clyde E. Moss on the S12SE44 sec. 28, T. 1 S., R. 12 W., St. Stephens Meridian, in Forrest County, Mississippi.
Responding to a posted notice in the land office, announcing the availability for leasing of certain land designated by legal subdivisions of the public land survey with an exception comprising a transmission line right-of-way, Moss filed his noncompetitive oil and gas lease offer describing, with other acquired land, the following land:
Section 28: 542842 less 3.05 acres for right-of-way Mississippi Power Co., transmission line as now located and more particularly described : being a strip of land 100 feet in width, 50 feet on each side of centerline of said right-of-way, said centerline being described as: Beginning at a point in the North line of SW44SW44, Section 28, 19.60 chains East of NW corner of SW14 SW14, thence S. 6 deg. 53 min. E., 18.32 chains; thence S. 9 deg. 35 min. E., 1.79 chains to a point in the South line of Section 28, 22.09 chains E. of SW corner. Moss' offer received first priority in a public drawing.
Babington protested the award of a lease covering the S72512 of section 28 on the ground that the description of land in the Moss offer is not in accordance with departmental regulation 43 CFR 200.5 (a), which provides in pertinent part as follows:
* * If the lands have been surveyed under the rectangular system of public land surveys, and the description can be conformed to such survey system, the lands must be described by legal subdivision, section, township, and range. Where the description cannot be conformed to the public land survey, any boundaries which do not so conform must be described by metes and bounds, giving courses and distances between successive angle points with appropriate ties to established survey corners. * * *
The land office held that the description of the right-of-way to be excluded from the lease should have consisted of a complete metes and bounds description of the outside boundaries of the right-of-way in order to comply with 43 CFR 200.5(a). It concluded, however, that, because the right-of-way traverses only the SW14SW14 and the SE14SW1/4 of section 28, and the SW14 SE14 and the SE44SE14 were included in their entirety in the lease offer under the designation of the S12512, the description of these subdivisions conformed to the public land survey system and met the requirements of the applicable regulation. It sustained the protest as to the S12SW14 and
dismissed it as to the S12SE14 of section 28 and the Division of Appeals affirmed on Babington's appeal. While this appeal was pending, Moss withdraw his offer as to the S12SW14 of section 28 less the right-of-way land.
In his appeal to the Secretary, Babington contends that when an offeror inserts an unacceptable description in his offer to lease a portion of a public land survey section properly designated as the S42512 of that section, the land office cannot alter the description by subdividing it to make it acceptable for a portion of the land.
I believe there is merit in the appellant's contention. It is clear that the description of the land to be excepted from the lease did not comply with the requirements of the regulation. First, it was tied to a quarter-quarter section corner, not to an established sur vey corner, which includes township corners, section corners, quarter-section corners and meander corners, as the regulation requires. Jack S. Stanley, A-29148 (January 24, 1963). Second, it did not constitute a metes and bounds description delineating the boundaries by giving courses and distances between successive angle points. The boundaries would have to be computed from the description given of the center line of the right-of-way and the width of the right-of-way. Moss apparently agrees that the description of the land in the right-of-way is not in accord with the regulation since he has withdrawn the S12SW14, containing the right-of-way, from his offer.
The only issue presented on this appeal is whether Moss' offer can be accepted as a proper offer for the S12SE14 of section 28. I do not think so. Moss applied for the "S1251/2" of section 28. He did not apply for the "S12SW14" and the “S1,SE14" of section 28 or for the "SW14SW14, SE1/4SW14, SW14SE14, and SE14SE14" of section 28. Nor did he apply for the “S12SW14 and the SW14 SE14 and SE14SE14" of section 28 or the “S12SE1/4 and the SW14SW14 and SE14SW14" of section 28. These descriptions represent all the possible ways of describing the four smallest legal subdivisions making up the S12S12 sec. 28.
At first glance there appears to be logic in saying that, since a description of the S12S12 is a composite description of the four legal subdivisions therein, if there is a flaw in the description of one or more of the legal subdivisions, the offer should be acceptable as to the legal subdivisions that are not affected. This, however, overlooks the purpose of the regulatory requirements for describing the land applied for. The purpose of the regulation is to require an