since this conclusion calls for a construction of the contract. (Italics supplied.)

12

Another noteworthy example is provided by Poloron Products, Inc. v. United States.13 This case is cited in Dec. Comp. Gen. B-152346 as authority for the statement that "The question of whether a claim is timely and in conformity with the contract provisions is one of law." A major point of controversy was whether a determination of the contracting officer had been communicated to the contractor in a manner that was sufficient to start the running of the appeal period of 30 days allowed by the "Disputes" clause. Concerning this point, the decision states:

The [War Department] Board of Contract Appeals granted plaintiff a full hearing on the merits of its claims because it deemed a consideration on the merits necessary to a decision on the jurisdictional question presented, that is, whether a timely appeal had been made. The Board then, in addition to dismissing the appeal for failure to perfect it within the required time, made and incorporated as part of its decision, detailed findings of fact which were adverse to plaintiff on all its claims. While the decision of the head of the department as to the facts is binding on this court under United States v. Wunderlich, 342 U.S. 98, its decision as to whether a timely appeal has been perfected within the meaning of the contract, being a question of law, is not one to which the limitation of Wunderlich attaches. W. C. Shepherd v. United States, 125 C. Cls. 724, 729; See Callahan Construction Co. v. United States, 91 C. Cls. 538, 616. Thus, we have in effect a two fold decision by the Board, part of which is binding here and part which is not. (Italics supplied.)

14

These decisions, together with such contract provisions as the waiver authorization of the "Changes" clause, clearly show that the process of reviewing determinations by a contracting officer with respect to the subject of timeliness, and, in particular, the process of reviewing determinations as to whether lack of timely notices or protests should be waived, is largely a process of determining matters of fact.

It is true, of course, that the question of what ultimate conclusions should be drawn from the facts found is, as the foregoing decisions indicate, a question which the Court of Claims sometimes regards as a question of law, even where the applicable standards of decision are contractual provisions rather than rules of statutory or common law. This, however, does not mean that the Court regards the drawing of such legal conclusions, much less the making of the findings of fact from which they are drawn, as beyond the jurisdiction conferred by the "Disputes" clause or by such documents as the Charter of this Board.15 It merely means that the Court regards such legal conclusions as not possessing the degree of finality prescribed by the "Disputes" clause or by section 1 of the so-called Wunderlich Act,16

12 125 Ct. Cl. at 729.

18 126 Ct. Cl. 816 (1953).

14 Id. at 824.

15 43 CFR 4.4.

16 41 U.S.C. sec. 321.

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and as open to the wider type of judicial review permitted by section 2 of that Act.17

The previously cited Shepherd case is a good example. There the Court disagreed with, and refused to abide by, the conclusions of the contracting officer and the War Department Board of Contract Appeals with respect to certain subjects. But it specifically held that the factual determinations made by those officials with respect to the same subjects were binding. Nor did it so much as suggest that the jurisdiction conferred upon those officials had been exceeded when they drew the conclusions which were later overruled by the Court, or when they issued the decisions which gave effect to such conclusions.

A striking illustration of the proposition that the existence of jurisdiction to decide does not depend upon the finality of the decisions rendered is afforded by McWilliams Dredging Company v. United States.18 That case involved a question of contract interpretation which had been decided by the Army Board of Contract Appeals pursuant to a memorandum of the Secretary of War that authorized the Board, in certain circumstances, to "consider and administratively pass on appeals not specifically or impliedly authorized by the contract." The Court of Claims held that the decision of the Board was without binding effect, since the question decided related to contract interpretation and thus was a question of law, and since neither the "Disputes" clause nor the memorandum of the Secretary of War gave finality to decisions upon questions of law. The effect of the memorandum was described by the Court in the following words:

It is evident that the Secretary was authorizing the Board to act for him in the way that any owner would act if a contractor was dissatisfied with the way he was treated by the owner's representative in charge. He would listen to the contractor's story, and if he thought that his representative had been unfair, he would reverse him. He would do this, not because the contract gave him any authority to make a final decision which would bar the contractor from relief in the courts for breach of contract, but because it would be the natural and fair way for an owner to act. And just as the contractor in the supposed case could sue for breach of contract if his appeal to the owner did not give him satisfactory relief, so can the contractor with the Government, if he has not contracted away his right to do so.1o

19

A more recent illustration is to be found in William A. Smith Contracting Company, Inc. v. United States.20 There the Court of Claims was called upon to review a decision of the Interior Board.21 That

17 41 U.S.C. sec. 322.

18 118 Ct. Cl. 1 (1950).

19 Id. at 16-17. The significance of this passage as a guideline for the determination of contract disputes is stressed in Cosmo Construction Company, IBCA-412 (February 20, 1964), 71 I.D. 61, 62, 1964 BCA par. 4059, and Eastern Maintenance Company, IBCA-275 (November 29, 1962), 69 I.D. 215, 220, 1962 BCA par. 3583, 5 Gov. Contr. 44 (h). 20 292 F.2d 847 (1961).

William A. Smith Contracting Company, Inc., IBCA-83 (June 16, 1959), 66 I.D. 233, 59-1 BCA par. 2223, 1 Gov. Contr. 481, 482.

decision had allowed one claim of the contractor, but had disallowed two others. Each of the disallowed claims turned upon an issue which the Court regarded as an issue of contract interpretation, and, therefore, as an issue of law. The Court, accordingly, held that the decision of the Board upon these claims was subject to review under section 2, rather than section 1, of the Wunderlich Act. It then turned its attention to the merits of the disallowed claims, held that the interpretation which the Board had placed upon the relevant contract provisions was the correct one, and gave judgment against the contractor. The Court, however, nowhere suggested that the Board erred in venturing to hear and decide claims which turned primarily, if not wholly. on what were, in the eyes of the Court, questions of law.

The Charter of the Interior Board expressly adopts the concept of jurisdiction we have been discussing. 43 CFR 4.4 states:

The Board exercises the authority of the Secretary in deciding appeals from findings of fact or decisions by contracting officers of any bureau or office of the Department of the Interior, wherever situated, or any field installation thereof. Decisions of the Board on such appeals are final for the Department. The Board may, in its discretion, decide questions which are deemed necessary for the complete decision on the issue or issues involved in the appeal, including questions of law (Italics supplied).

Pursuant to this provision, the Board has held that its jurisdiction comprehends the determination of questions of law, whether presented in the form of pure questions of law or in the form of mixed questions of law and fact.22

When all of these considerations are taken into account, it is evident that the principles governing the determination of questions of law, in disputes pertaining to contracts, offer no support for a conclusion that the defense of untimeliness can be waived by the contracting officer alone.

A second ground which has been advanced as support for such a conclusion is that the authority to waive is conferred in terms which mention only the contracting officer and, hence, may be exercised only by him. This argument is necessarily inapplicable to situations where, as in the case of a failure to ask for written instructions, the authority to waive is conferred by legal implication, rather than by express provision, since the reasons for implying such an authority are no less valid when the persons who will exercise it include the head of the Department and his authorized representatives than they are when such persons consist of the contracting officer and his authorized

22 Robert J. Gordon Construction Company, IBCA-216 (April 21, 1960), 60-1 BCA par. 2594, 2 Gov. Contr. 236; Commercial Metals Company, IBCA-99 (August 27, 1959), 66 I.D. 298, 305, 59-2 BCA par. 2298, 1 Gov. Contr. 600, 601.

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representatives. Thus, the argument that the waiver authority of the contracting officer is intended to be exclusive could, in any event, be applicable only to situations where such authority is expressly granted to the contracting officer, as in the case of the provision of the "Changes" clause that "the Contracting Officer, if he determines that the facts justify such action, may receive and consider" late claims.

With respect to situations of the latter type, the argument in question lacks force because it is inconsistent with a well-established principle of Government contract law. This principle is to the effect that a contract provision which grants the contracting officer authority to decide particular matters does not exempt his decisions upon such matters from review under the "Disputes" clause, unless the provision affirmatively discloses an intent that the decisions made by the contracting officer with respect to such matters are to be final.

A notable discussion of the principle just mentioned appears in Fred R. Comb Co. v. United States.23 The Bureau of Indian Affairs had made a contract which contained a "Disputes" clause (Article 15) applicable to "disputes concerning questions arising under this contract,” and which also contained a clause (Paragraph 4) providing that the Commissioner of Indian Affairs—who was the contracting officer—“shall be the interpreter" of "the true intent and meaning of the drawings and specifications." 24 A dispute arose over the interpretation of one of the specifications, the Commissioner decided the dispute against the contractor, an appeal was taken, and the Secretary of the Interior reversed the Commissioner.25 The Comptroller Gen

23 100 Ct. Cl. 259 (1943).

24 The contract was on a form, designed for use in connection with W.P.A. projects, that included the same "Disputes" clause as Standard Form 23 (Revised September 9, 1935), with modifications which made special provision for the determination of certain types of labor disputes and which, in the phrase first above quoted, substituted "questions" for "questions of fact."

* Prior to World War II, appellate decisions under "Disputes" clauses were usually made by the head, or an assistant head, of the department concerned. This arrangement had various drawbacks; for example, the officials concerned rarely had time to conduct formal hearings, give personal consideration to the record, or observe other quasi-judicial safeguards. As a result, most major contracting agencies now utilize boards of contract appeals, who serve, on behalf of the head of the department, as the "duly authorized representatives" mentioned in the "Disputes" clause. In the Department of the Interior, the first step away from the earlier arrangement was the vesting of jurisdiction to decide contract appeals in the Solicitor of the Department. This was accomplished by Order No. 2392 (12 F.R. 8423), dated December 9, 1947. The second step was the creation of the Interior Board of Contract Appeals, the vesting in it of jurisdiction over contract appeals, and the establishment of quasi-judicial rules of procedure to govern the presentation and consideration of such appeals. This was accomplished by Order No. 2509, Amendment No. 22 (19 F.R. 9428) and by 43 CFR, Part 4 (19 F.R. 9389), both of which became effective on December 31, 1954.

eral, however, refused to give effect to the determination of the Secretary, and the contractor brought suit for the amount allowed by the latter. The Court of Claims held for the contractor, saying:

Many times in this court the Government has defended a suit on the ground that the claimant had failed to pursue his contructual remedy of appealing to the head of the department from an adverse ruling of the contracting officer, but this is the first case that has been presented to us in which the Government has taken the position that the contractor has not even this remedy and that the contracting officer's decision is final and subject to review not even by his superior in the department.

In justice to Government counsel it should be said that this position is but half-heartedly advanced. It was the position taken by the Comptroller General when he denied the claim. It is patently unsound.

Paragraph 4 of the general conditions of the specifications did make the Commissioner of Indian Affairs, who was the contracting officer, the interpreter of the intent and meaning of the drawings and specifications, but it did not say that his interpretation thereof should be final and subject to review neither by the courts nor by his superior. It must be read in connection with another provision of the contract, of which it is a part, to wit, article 15 of the contract, which provides for an appeal to the head of the department from the decisions of the contracting officer on disputes concerning questions arising under the contract. Effect must be given, of course, to all parts of the contract; no provision should be construed as being in conflict with another one unless no other reasonable interpretation is possible. This is axiomatic. Paragraph 4 of the general conditions of the specifications is not in conflict with article 15 of the contract. Paragraph 4 makes the Commissioner of Indian Affairs the interpreter of the meaning of the specifications, but it does not make his interpretation final and conclusive; it does not say that there shall be no appeal therefrom to the head of the department.

The provisions of article 15 of the contract apply to such disputes as well as others. It is clear that the contractor in this case did have a right to appeal to the head of the department.20

27

In United States v. Joseph A. Holpuch Co.," the Supreme Court was presented with a problem which turned upon contractual provisions similar to those involved in the Comb case, supra, except that the function of interpreting the drawings and specifications was vested in a subordinate of the contracting officer. This subordinate had made a ruling upon a question of interpretation, from which the contractor had made no attempt to take an appeal either to the contracting officer or to the head of the department. The question presented was whether this failure barred the contractor from maintaining a suit to contest

28 100 Ct. Cl. at 264-66.

328 U.S. 234 (1946).