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unit prices agreed upon will be in full for the completed work and will cover materials, supplies, labor, tools, machinery, and all other expenditures incident to satisfactory compliance with the contract, unless otherwise specifically provided. The foregoing clearly applies to claims for increased compensation. Extensions of time are not mentioned.
We consider that the foregoing provisions do not in any way modify subparagraph (d) (1) of Clause 5, quoted in part supra, and cannot be said to deprive the contractor of his right under Clause 5 to an extension of time for completing the work. This Board, as well as the Armed Services Board of Contract Appeals, has held that overruns of estimated quantities constitute a proper basis for granting extensions of time.8
The Government's principal argument concerning this claim seems to be that the “approximate quantities” provision has the effect of causing the dimensions and specifications, set forth elsewhere in the contract, to prevail over the estimated quantities stated in the schedule. We are in agreement with this reasoning only in so far as it concerns the effect of the overrun or underrun on the unit prices. If the actual quantities, as determined by the drawing dimensions and specifications, exceed the estimated quantities, the contractor has a measure of protection as to price and cost. In such an event he receives an automatic and commensurate increase in total payments based on unit prices for the increased volume of work.
However, this type of protection does not shield the contractor against the imposition of liquidated damages, where the increases in quantities have prolonged the performance period. Although it may be said that the contractor should make an independent calculation of the real quantities involved, from a study of the drawings, specifications, logs of exploration, and examination of the site, such an independent estimate can be only an approximation at best. Hence, it may not afford adequate protection against liquidated damages in the event of delay due to overruns. For example, in the instant case no agreement was made between the parties at any time concerning the shrinkage ratio for determining compaction quantities. Hence, the actual quantities could not be determined until completion. Also, excessive moisture in portions of the work site made it necessary to use larger quantities of fill than would have been necessary under normal conditions. This was without any fault on the contractor's part.
Moreover, it is possible for an overrun of a comparatively moderate extent to delay the work by a matter of one or more days. Where
8 R. G. Brown, Jr., and Company, IBCA-356 (July 26, 1963), 1963 BCA par. 3799, 5 Gov. Contr. 406(k); R. G. Brown, Jr., and Company, IBCA-241 (December 12, 1961), 61-2 BCA par. 3230, 4 Gov. Contr. par. 39; Ashton-Merdien Company, ASBCA No. 7912 (July 26, 1963), 1963 BCA par. 3836, 5 Gov. Contr. 523; R. G. Foster & Company, ASBCA No. 6459 (February 24, 1961), 61-1 BCA par. 2957, 3 Gov. Contr. 298(g).
April 21, 1964
such minor variations occur as to several contract items, a considerable delay may result, subjecting the contractor to assessment of a substantial amount in liquidated damages. Such small overruns (and underruns) are not susceptible of being anticipated, and we consider them to be unforeseeable within the meaning of Clause 5, as well as being without the fault or negligence of the contractor.
These difficulties are recognized by the Bureau of Public Roads, which includes an express provision in its contracts. Such an express provision is, of course, merely the product of what we consider to be the applicable law with respect to delays caused by overruns.
Appellant sets forth, in its letter of February 2, 1962, several instances of overruns in the performance of the contract, with requests for extensions of time. That letter revises the claims in the contractor's letter of November 13, 1961, and states that the actual quantities listed are exclusive of those quantities which are in dispute with respect to alleged over-building of embankments, described in Claim No. 1. The details are shown in the following tabulation:
Under paragraph (d) of Clause 5 of the contract, it is the responsibility of the contracting officer to
s "Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects" (January 1961 edition). . Similar provisions are found in Section 8.6 of the 1957 edition.
Section 8.6 Contract Time, of the 1961 Specifications incorporated by reference in a number of contracts of the National Park Service and administered by the Bureau of Public Roads, meets the problem as follows, in paragraph (2):
(2) If the satisfactory performance of the contract with changes, extensions, or increases ordered or authorized by the engineer results in the final amount earned, exclusive of the cost of all changes covered under paragraph (1) above, being greater than the original contract amount, the contract time shall be increased in the same ratio that the total amount earned, exclusive of the cost of all changes covered under paragraph (1) above, bears to the original contract amount, except that in exceptional cases where this procedure is inadequate to provide an equitable adjustment in time, some other basis for time adjustment may be authorized.
* ascertain the facts and the extent of the delay and extend the time for completing the work, when, in his judgment, the findings of fact justify such an extension * * *.
The contracting officer has not made specific findings concerning the extent of the delays claimed to be excusable, presumably for the reason that, in his judgment, an extension was not justified. However, the Board finds that the facts justify an extension of time for the number of days claimed. As we said in Eastern Vaintenance Company 10
Accordingly, what the contracting officer, through inadvertence or error, has failed to do * * the Board will do. Additionally, considering the lapse of time which has occurred since the contractor's last claim letter of February 2, 1962, the Board concludes that no useful purpose will be served by remanding this portion of the appeal to the contracting officer for the preparation of new or supplemental findings as to the extent of the excusable delay.11
We conclude that the contractor is reasonably entitled to an extension of time of nine days, from November 27, 1961, to December 6, 1961. The unexcused portion of the delay is therefore reduced to 7 days, from December 6 to 13, 1961. The unexcused period of 7 days is presumably related to the additional work involved in the quantity of 7,408.4 cubic yards placed in embankment outside of pay lines, as described under Claim No. 1, supra.
A. The appeal is sustained in part, as to Claim No. 3, and an extension of time of nine days is granted, to December 6, 1961.12
B. The appeal is denied as to Claims Nos. 1 and 2 in their entirety.
Tuomas M. DURSTON, Member.
PAUL H. GANTT, Chairman.
REX N. AND MILDRED B. ANDERSON
Decided April 24, 1964 Withdrawals and Reservations: Reclamation Withdrawals—Mining Claims:
Mill Sites-Mining Claims: Withdrawn Land Land withdrawn for reclamation purposes can be opened to location under
the mining laws only where the land is known or believed to be valuable for minerals; consequently, nonmineral land in a reclamation withdrawal can
19 IBCA-275 (November 29, 1962), 69 I.D. 215, 1962 BCA par. 3583, 5 Gov. Contr. 44 (h). 11 Idem. 12 The remaining 7 days of delay, to December 13, 1961, are not excused.
April 24, 1964
not, in the absence of other considerations, be opened for location of a mill site, which is locatable only on nonmineral land.
Withdrawals and Reservations: Reclamation Withdrawals—Mining Claims:
Mill Sites-Mining Claims: Withdrawn Land In opening reclamation withdrawn land to mining location it is necessary that
each 10-acre subdivision be mineral in character but it is not required that every acre of the 10-acre tract be mineral in character; consequently where a tract of land is opened to mining location and part of the land is nonmineral in character, that part of the land can be included in a mill site.
APPEAL FROM THE BUREAU OF LAND MANAGEMENT
Rex N. and Mildred B. Anderson have appealed to the Secretary of the Interior from a decision dated November 23, 1962, in which the Acting Assistant Director of the Bureau of Land Management affirmed a decision of the land office at Boise, Idaho, rejecting their application for opening to mineral entry of certain land in the vicinity of a reservoir area under reclamation withdrawal. The rejection was predicated upon the conclusion that a mill site can be located only on land nonmineral in character (Rev. Stat. & 2337 (1875), 30 U.S.C. $ 42 (1958)) while land under reclamation withdrawal which may be opened to mineral entry must be known or believed to contain valuable deposits of minerals (act of April 23, 1932, 47 Stat. 136, 43 U.S.C. S$ 154, 155 (1958)).
The appellants hold a number of mining claims located in October 1912, referred to as the Daley claims, and one known as the Daley Mill Site, located in June 1919, in lots 1 and 3, sec. 14, T. 1 S., R. 8 E., B.M., Idaho. These lots, with others, were withdrawn for reclamation purposes on February 10, 1942, and the Anderson Ranch Dam was built about two and one-half miles above on the South Fork of the Boise River. On August 14, 1959, the claimants located the Rex Mill Site on an area of 4.952 acres, partly within the existing Daley Nos. 1 and 36 claims and partly on land not included in any mining claim but included in the reclamation withdrawal. Subsequently, they filed an application for patent for the King B lode claim and the Rex Mill Site. The Rex Mill Site was declared null and void and the application rejected as to it because the location was made on withdrawn land. This decision was affirmed by the Director of the Bureau of Land Management on September 11, 1961. Subsequently, the claimants filed an application for opening lots 1 and 3, totaling 57.50 acres, to mineral location.
The land office rejected the application to open the withdrawn land to mineral location on the ground that, although the applicable statute could be interpreted to permit the location of a mill site on reclamation withdrawn land, such interpretation might be in conflict with the departmental regulation which requires that land to be opened to mineral location be “known or believed to contain valuable deposits of minerals.” 43 CFR 3400.4, 29 F.R. 4569. On appeal, the Director held that there is no conflict between the statute and the regulation because the statute also requires that withdrawn land which may be opened to mineral location must be known or believed to be valuable for minerals.
On appeal to the Secretary of the Interior, the appellants request that the Department allow them to obtain use of the requested area by whatever legal or equitable procedure is available.
Section 1 of the act of April 23, 1932, supra, provides in pertinent part:
That where public lands of the United States have been withdrawn for possible use for construction purposes under the Federal reclamation laws, and are known or believed to be valuable for minerals and would, if not so withdrawn, be subject to location and patent under the general mining laws, the Secretary of the Interior, when in his opinion the rights of the United States will not be prejudiced thereby, may, in his discretion, open the land to location, entry, and patent under the general mining laws * * *. (Italics added.)
The appellants' basic position seems to be that locations for mill sites come under the general mining laws and that therefore, since the statute authorizes the Secretary to open reclamation withdrawn lands to "location, entry, and patent under the general mining laws,” he can do so even though the withdrawn land sought for a mill site is nonmineral in character. This argument cannot be accepted since to do so would be to read out of the statute the specific qualifications that only land “known or believed to be valuable for minerals” can be opened to location. The appellants have submitted no plausible basis for reading the statute in this fashion even though it may be conceded that the disposition of lands for mill sites comes under the general mining laws. I agree, therefore, with the decisions below that the Department cannot open to disposition under the mining laws land which is not known or believed to be valuable for minerals.
This does not, however, mean that appellants' application must be rejected in its entirety. The appellants have applied for the opening of two lots comprising a total of 57.70 acres (lot 1, 18.80 acres; lot 3, 38.90 acres). This appears to be in accordance with the regulation governing the filing of such applications, which provides that the land the applicant desires to locate must be described by legal subdivision, if surveyed. 43 CFR 3400.4, 29 F.R. 4569. This, in turn, is consonant with the long-standing administrative practice of disposing of public lands in the terms of smallest legal subdivisions, i.e., a quarter-quarter section or a lot.
In the case of the mining laws, however, it is provided with respect to placer claims that legal subdivisions of 40 acres may be subdivided into 10-acre tracts. Rev. Stat. $ 2330, as amended, 30 U.S.C. $ 36 (1958). Because of this, the Department has required that each 10