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applications and they have prosecuted their appeal, from what they regard as a decision only ostensibly in their favor, in order to obtain the exercise of the Secretary's supervisory jurisdiction in the matter.

To understand fully the basis for the protests and the situation as it existed when the public sales applications were suspended, certain facts must be recited.

All of the land now covered by the State's application and most of the land covered by the Burlingham applications was withdrawn for reclamation purposes in 1914. While the land was in that status, it was, of course, not available for disposition under the provisions of the public sale law, Rev. Stat. $ 2455 (1875), as amended, 43 U.S.C. $ 1171 (1958), or in satisfaction of the lieu selection rights granted to the States under Rev. Stat. SS 2275 and 2276 (1875), as amended, 43 U.S.C. $S 851, 852 (1958), amended, 43 U.S.C. $ 852 (Supp. IV, 1963).

The act of August 27, 1958, 72 Stat. 928, 43 U.S.C. S$ 851, 852 (1958), generally amended the provisions of the Revised Statutes relating to the selection of lands by the States in satisfaction of deficiencies in their school grants and provided, in subsection (c) of 8 2276, that upon the revocation, not later than 10 years after the date of approval of that act, of any order of withdrawal, in whole or in part, the order taking such action

* * * shall provide for a period of not less than six months before the date on which it otherwise becomes effective in which the State or Territory in which the lands are situated shall have a preferred right of application for selection under this section * * *.

According to the present record, the State of New Mexico was notified on December 16, 1960, of the proposed restoration of certain lands in the 1914 withdrawal and the State indicated that it intended to exercise its selection right under the 1958 act. Thereafter, and prior

the actual revocation of the withdrawal, the State, on June 26, 1961, filed an application (New Mexico 0164248) to select some of the land to be restored.

Thereafter, on September 25, 1961, by Public Land Order No. 2509, 26 F.R. 9228, the revocation was made. Under the terms of that

, order, the lands affected thereby were restored to the operation of the public land laws with the proviso that:

* * * until 10:00 a.m., on March 27, 1962, the State of New Mexico shall have a preferred right to apply to select the lands in accordance with subsection (c) of section 2 of the act of August 27, 1958 * *

On September 18, 1962, the State was notified that its application for selection filed on June 26, 1961, was premature, having been filed

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1 The Burlinghams attempted to acquire the land covered by their present applications while a part thereof was in a withdrawn status. The rejection of their applications insofar as it covered the withdrawn land was affirmed in Atherton 8. Burlingham and Hilda 8. Burlingham, A-29029 (August 6, 1962).

April 16, 1964

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while the land was still in a withdrawn status, and on September 20, 1962, the State withdrew its application and notified the land office that a new selection application would be filed. The State filed its new application, New Mexico 0321650, on October 16, 1962.

Meantime, however, the Burlinghams had filed their public sale applications. Those applications were filed on September 4, 1962, the first day on which applications for the sale of public lands could have been filed following the end of the moratorium on the filing of such applications announced by the Secretary of the Interior on February 14, 1961.

The notices of suspension of the Burlingham applications, out of which the protests grew, followed on January 10, 1963.

In their appeal to the Secretary, the appellants contend that, because the State failed to file an application to select within the preference period, it lost the statutory preference and any application that it filed after the end of the preference period is junior to any application that was filed earlier. They conclude that, because the State had no right of priority, it is immaterial whether or not it acted with reasonable diligence but, in any event, it clearly failed to act with diligence since its application was not filed until more than a year after the land became available for its selection.

These views seem to reflect a misconception of the situation. It is clear that the State failed to file within the preference period and thereby lost all of the advantages that inhere in the statutory grant of an absolute preference. Its application, filed almost six weeks after the public sale applications were filed, is therefore a nonpreferenceright application so far as the statute is concerned. It is, however, an application filed by a State in the exercise of its statutory right to receive a specified acreage in full satisfaction of a legislative grant of public land. As such, it is entitled to consideration with other applications for the same land and to allowance, if it is allowable, even though a conflicting application might be allowed but for the existence of the State selection application. Olaf H. Iverson et al., A-28810 (July 12, 1962).

In Nelson A. Gerttula, 64 I.D. 225, 229 (1957), the Department stated that a selection application proffered by a State in the exercise of a lieu selection right should, as a matter of principle, be honored over competing applications for the initiation of private rights in the same land even though the applications for private rights may more nearly conform to the characteristics of the land. The decision indicated that both kinds of applications are to be considered together and the public interest in the full satisfaction of legislative grants of public land to the States will be allowed to tip the scales in favor of a State even though the land may be equally well adapted to the different

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purposes indicated by the conflicting applications. And in the application of this principle, consideration will be afforded to the State application whether it was filed earlier, contemporaneously, or within a period following the filing of the conflicting application or applications which is sufficiently restricted to indicate that the State acted with reasonable diligence in preparing and filing its application.

It is true that the Congress has made explicit provision in favor of States for a preference period of 6 months' duration to be operative throughout an interval of 10 years from August 27, 1958, in every instance of the revocation of a withdrawal of public land. Thus, it appears that the effect of the statute establishing the preference is to encourage the States to make selections in satisfaction of their public land grants as rapidly as possible (H.R. Rep. No. 2347, 85th Cong., 2d Sess. 5 (1958)), but it does not, of course, compel them to do so. Hence, one must suppose that States selection applications will continue to be filed after the preference right to file has terminated. Since the State selection preference it temporary in nature, I am unable to accept the appellants' argument that the statutory provision for the State preference constitutes a Congressional preemption of the entire area of State selection which amends existing administrative policy to conform thereto so that the Secretary of the Interior no longer has any discretion in the consideration of State selection applications and conflicting applications for private rights. The appellants have furnished no evidence of a legislative intent to that effect.

On the contrary, before the Congress granted a State selection the preference right described, the Department had recognized that a State selection application proffered pursuant to a legislative grant of public land evidences a claim rising from a higher source than the application of a person who seeks to avail himself of the privilege of acquiring a portion of the public domain. The Congress did not include in the preference provision of the 1958 act any inconsistent provision which casts any doubt upon the validity of the Department's previous evaluation of State lieu selection rights or the procedures which reflect such evaluation. Hence, I am persuaded that the statutory 10-year period affording an absolute preference right for the filing of State selection applications is entirely consistent with the Department's established conception of the nature of a legislative grant of public land and with the Department's established procedures for the consideration of selection applications and conflicting applications for the initiation of private rights in public lands. Cf. Union Oil Company of California, A-29905 (March 30, 1964).

This does not mean, however, that a nonpreference-right State selection application is entitled to priority of consideration; only that such application and applications for the initiation of private rights in

April 16, 1964

the same public land are to be considered at the same time and a decision reached as to the suitability of the land for the different purposes indicated in the two applications. Thus, in this instance, the land office is now called upon to determine whether the land described in the conflicting applications is proper for acquisition by the State of New Mexico in satisfaction of the deficiency in its school grant or whether it would be proper to order the land into market to be sold.

If the State selection application is in proper form, if the records indicate that the State is entitled to indemnity for the land for which indemnity is sought, and if the land is suitable for State acquisition and need not be retained for some public purpose, the State's application should be granted, even though, in the absence of the State application, the land could be classified as suitable for public sale. If the State application is not in proper form, if the State is not entitled to indemnification for the land which is the basis of its request for this land, or if the land cannot properly be classified as suitable for disposition in satisfaction of a State grant, the State's application should be rejected. If there are no defects in the public sale applications, in the event of rejection of the State application, these applications can be allowed if it is determined that the land is suitable for public sale and if any reason that may have precluded a favorable classification for State selection is not also a bar to public sale.

Consideration of the applications in this manner is proper, however, only if the State application is entitled to consideration because the State exercised reasonable diligence in presenting it following the filing of the Burlingham applications. In previous decisions, the Department has held that 11 months' delay after the filing of an application seeking private rights does not constitute reasonable diligence on the part of a State (Nelson A. Gerttula, supra), but that a delay of 6 months (Gerald Kolterman et al., A-27735 (November 20, 1958)) or of 8 months (George E. Fahey, A-27606 (November 4, 1958)) is within the limits of reasonable diligence. Accordingly, it is apparent that a delay of six weeks need not require a conclusion that the State failed to proceed with reasonable diligence. The appellants' contention that the period of delay by which the diligence of the State is measured commenced when the land became available for selection by the State cannot be accepted in lieu of the date of the conflicting application from which the diligence of a State has previously been measured since the problem thus presented is whether the applicant for private rights will be measurably affected by possible changes in conditions during a period between the filing of his application and that of the State selection application. Obviously, the applicant cannot suffer detriment because of a lapse of time which occurs before his application is filed. Therefore, the period by which the reasonableness of the diligence exhibited by a State is measured runs from the time that the application for private rights is filed.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4)(a); 24 F.R. 1348), the

; case is remanded for consideration of the State selection application and the public sale applications in accordance with the views set forth in this decision.

ERNST F. HOM,
Assistant Solicitor.

APPEAL OF R & M CONTRACTORS, INC.

IBCA-325

Decided April 21, 1964

Contracts: Changes and Extras—Contracts: Additional Compensation-Con

tracts: Contracting Officer A contractor is not entitled to additional compensation where the extra work

on which the claim is founded was performed outside of the paylines established by the contracting officer pursuant to his contract authority. Under such circumstances the work was unnecessary and the contractor was a

mere "volunteer" with respect thereto. Contracts: Interpretation-Contracts: Specifications—Contracts: Drawings Where the contract specifications and drawings are not ambiguous, there is

no need to construe the contract. The contractor's interpretation being

unreasonable, the doctrine of contra proferentem does not apply. Contracts: Delays of Contractor-Conracts: Changes and Extras—Contracts:

Performance A contractor is entitled to an extension of time pursuant to the Clause 5 of

Standard Form 23-A (April 1961 edition) where unforeseeable overruns of estimated quantities delayed the performance of the contract.

BOARD OF CONTRACT APPEALS

The contractor has appealed timely from the Findings of Fact and Decision of the contracting officer dated March 30, 1962, which denied the contractor's claims concerning measurement and payment for services and materials, and as to excusable delay. The aggregate value of the claims is $8,150.

On August 9, 1961, the contractor was awarded a contract in the total estimated amount of $90,788 for 18 items of work and supplies, based (with one exception) on estimated quantities and unit bid prices. Standard Form 23-A (April 1961 edition) was included in the contract, as well as certain other provisions and specifications. Liquidated damages of $50 per calendar day were specified for delay

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