clearly stated that one price would be paid for all excavation, irrespective of its nature. The interpretation, by the contractor, of such modification as a representation that no rocks would be encountered is so strained as to be unreasonable. Neither the original nor the substituted provision purports to be a statement of fact as to whether rock will or will not be encountered. On the contrary, each purports to be a statement of how much will be paid for excavating rock if it is encountered. The modification could be of little value to the Government unless rock were encountered, and, hence, the fact that the Government chose to make such a modification would offer a prudent bidder more reason to believe rock was anticipated than to believe it was not anticipated. Giving the most favorable consideration to the contractor's view of the contract provisions in controversy, the best that can be said for that view is that the contractor was faced with an uncertainty as to what was intended, and undertook to resolve that uncertainty on its own by adopting an unreasonable interpretation of the contract. The contractor could have protected itself by seeking to have the matter clarified by the contracting officer before the bid opening.13 This was not done by the contractor, and, therefore, the Government had no opportunity to resolve any supposed inconsistencies. Accordingly, the contractor is not entitled to the application of the rule of contra proferentem-that an ambiguity in a contract provision will be interpreted in favor of the party who did not draft the contract-since this rule is applied only where that party's interpretation has a reasonable basis.14 Hence, the requirements for establishing a changed condition of the first category (on the basis of contract representation) have not been met by the contractor. Additionally, it must not be supposed that the contractor is entitled to relief under the Changed Conditions clause for a changed condition of the second category merely because some rocks or boulders were encountered. As previously indicated, the contractor has not stated the quantities or sizes of rock involved. The requirements of the Changed Conditions clause concerning "unusual nature" must be met. If Clause 1-04 had not been modified, the contractor would have been entitled to a price adjustment only in the case of boulders exceeding 11⁄2 cubic yards in volume, and in the case of rock requiring blasting or systematic drilling. However, the contractor's claim seems to be predicated on the proposition that a price adjustment should be made 13 E-W Construction Company, IBCA-297 (October 23, 1963), 1963 BCA par. 3922, 5 Gov. Contr. 565 (d). See also "Instructions to Bidders", quoted in text, supra. 14 E-W Construction Company, note 13, supra. January 31, 1964 for all rock encountered. It seems significant that there is no assertion as to the volume of any boulders found in the excavations or as to any need for blasting or systematic drilling (no costs are specifically claimed for either). That part of the claim related to permafrost is not as worthy of consideration as the rock claim. The contract provisions did not at any time contain any statements concerning permafrost or price adjustment therefor. It is common knowledge that permafrost is prevalent throughout much of the State of Alaska, and the Board takes official notice to that effect. Moreover, the contractor had visited the site before bidding and had the same opportunities for inquiry and for examination of nearby excavations as was the case with rock and boulders. Accordingly, the contractor has failed to show the existence of a changed condition of the second category. Concerning the question of notice, there appears to be no statement or evidence submitted by the Government to the effect that the Government was prejudiced by the delay of the contractor in giving notice of the supposed changed condition. However, the contractor's appeal letter of April 9, 1962, says without equivocation: The Contractor states further that no notice of these adverse conditions was given Contracting Officer during the progress of the work. Without deciding this issue, there is reason to assume that the rights of the Government must necessarily have been injured or prejudiced by such a long delay.15 It was given no opportunity to verify the contractor's claim or the extent thereof while the work was going on, as required by the Changed Conditions clause. In any event, the contractor's appeal must perforce be denied for the several reasons discussed elsewhere in this opinion. 15 Cf. Korshoj Construction Company, IBCA-321 (August 27, 1963), 1963 BCA par. 2848, 5 Gov. Contr. 501. INTERPRETATION OF THE SUBMERGED LANDS ACT Submerged Lands Act: Generally-Oil and Gas Leases: Applications The Departmental decision in Henry S. Morgan, Floyd A. Wallis, et al., BLM-A-036376 (1956), affirmed by the Secretary of the Interior, 65 I.D. 369 (1958), is overruled to the extent that it is inconsistent or in conflict with the conclusion reached in the opinion of the Solicitor General issued December 20, 1963. Submerged Lands Act: Generally The Submerged Lands Act of May 22, 1953, 67 Stat. 29, 43 U.S.C., sec. 1301 et seq., released to the States any former title of the United States to lands which were formerly beneath navigable waters as defined in section 2(a) of the Act, but which emerged as islands through natural processes within the boundaries of the States before the effective date of the Act. Submerged Lands Act: Generally-Words and Phrases Lands which are "made" as that term is used in section 2(a)(3) of the Submerged Lands Act of May 22, 1953, 67 Stat. 29, 43 U.S.C., sec. 1301 et seq., include lands which are formed as islands by natural processes as well as those which are man made. See Solicitor General's Opinion December 20, 1963, p. 22. M-36665 January 31, 1964 To: THE SECRETARY OF THE INTERIOR SUBJECT: INTERPRETATION OF THE SUBMERGED LANDS ACT. On December 20, 1963, the Attorney General approved and transmitted to you an opinion prepared by the Solicitor General dealing with the question of title, under the Submerged Lands Act of May 22, 1953, 67 Stat. 29, 43 U.S.C., sec. 1301 et seq., to certain lands which formed as islands in the marginal sea within the boundaries of a State after such State was admitted to the Union but before the effective date of the Submerged Lands Act. That opinion, together with the Attorney General's letter of transmittal, is attached hereto. The opinion approved by the Attorney General establishes the legal principle under which the Department of the Interior will now operate. However, the opinion contemplates further administrative action on the part of this Department as outlined below. First, the Solicitor General has expressly advised that the Departmental decision in Henry S. Morgan, Floyd A. Wallis, et al., BLMA-036376 (1956), affirmed by the Secretary, 65 I.D. 369 (1958), is in conflict with his conclusion that the Submerged Lands Act released to the States any former title of the United States to lands which were January 31, 1964 formerly beneath navigable waters as defined in Section 2(a) of the Submerged Lands Act, but which emerged as islands through natural processes. To the extent that the Wallis decision is inconsistent or in conflict with the conclusion of the Attorney General, that decision must be and is hereby disapproved and overruled. Second, several matters presently pending before the Department are materially affected by the opinion approved by the Attorney General and should be disposed of in accordance therewith. Among the matters awaiting Departmental action are the applications received by the Bureau of Land Management for the issuance of oil and gas leases on lands which were formed as islands by natural processes prior to the effective date of the Submerged Lands Act and which may, therefore, be affected by the Solicitor General's opinion. 2 1 Also pending before the Department are the protests filed by the States of Louisiana and Florida 1 to the granting of the lease applications. The pending lease applications which are the subject of the protests presently before me are hereby denied. Such other lease applications covering lands in areas which may be affected by the Solicitor General's ruling, as may be pending before the Bureau of Land Management, should be denied by the Bureau as soon as possible. The State of Florida has also filed a formal protest to the action of the Bureau of Land Management in ordering the Florida islands opened for leasing as public lands (25 Fed. Reg. 10954 (1960)). The Bureau is, therefore, instructed to take appropriate action to amend and modify the order opening the lands to public domain oil and gas leasing to conform to the opinion of the Solicitor General. FRANK J. BARRY, Solicitor. APPROVED: (Sgd.) STEWART L. UDALL, Secretary of the Interior. 1 Lease applications protested in this proceeding are as follows: December 20, 1963. THE HONORABLE THE SECRETARY OF THE INTERIOR MY DEAR MR. SECRETARY: I enclose an opinion prepared by the Solicitor General at the request of the President dealing with title under the Submerged Lands Act to certain lands originally formed as islands in the marginal sea. I am in full accord with the opinion expressed by the Solicitor General. Please let me know whether you have any objection to the publication of this opinion in accordance with 5 U.S.C. 305. Sincerely, (Sgd.) ROBERT F. KENNEDY, Attorney General. OPINION OF THE ATTORNEY GENERAL OF THE TITLE TO NATURALLY-MADE LANDS UNDER THE SUBMERGED LANDS ACT The Submerged Lands Act (act of May 22, 1953, c. 65, 67 Stat. 29, 43 U.S.C. 1301-1315) relinquished any former title of the United States to lands naturally-made as islands, which formerly were "lands beneath navigable waters," as that phrase is defined in the act. Title to accretions to public lands of the United States was not affected by the act. The ruling of the Bureau of Land Management of the Department of the Interior in the case of Floyd A. Wallis (BLM-A 036376), as affirmed by the Secretary of the Interior (65 I.D. 369 (1958)), to the contrary is erroneous and should be revoked. THE SECRETARY OF THE INTERIOR. December 20, 1963. MY DEAR MR. SECRETARY: I have the honor to submit for your guidance, pursuant to a request from the President on October 30, 1963, an opinion formally embodying the advice which I gave him on January 30, 1963, concerning the title, if any, of the United States to lands which formed as islands in the marginal sea within the boundaries of a State after the State was admitted to the Union but before May 22, 1953, the effective date of the Submerged Lands Act, c. 65, 67 Stat. 29 (43 U.S.C. 1301 et seq.). The most important of the disputed areas |