Decisions of the United States Department of the Interior

MONTGOMERY-MACRI COMPANY AND WESTERN LINE CONSTRUCTION COMPANY, INC.

IBCA-59 and IBCA-72 Decided June 30, 1964

Contracts: Appeals-Contracts: Substantial Evidence

Motions for reconsideration of a decision of the Board of Contract Appeals will be denied if they are based on factual contentions that are contrary to the preponderance of the evidence, determined by evaluating the testimony and exhibits as a whole in accordance with accepted criteria of evaluation, or if they are based on legal contentions that are inapplicable to the factual situation revealed by the record.

Contracts: Breach-Bonneville Power Administration

The provisions of the Bonneville Project Act which authorizes settlement of claims against the Bonneville Power Administration are applicable to claims for breach of contract involved in appeals taken to the Board of Contract Appeals from decisions of contracting officers of the Bonneville Power Administration.

BOARD OF CONTRACT APPEALS

Motions for reconsideration of the decision 1 rendered by the Board upon these appeals have been filed by both parties. Appellants' motion asks for reconsideration of all parts of the decision that are adverse to appellants. The Government's motion asks for reconsideration of a number of the principal parts of the decision, in so far as those parts are adverse to the Government.

The Board has given detailed consideration to the many arguments. urged by each party in support of or in opposition to the respective motions. The Board has also given consideration to a brief entitled "Amicus Curiae Brief" filed by a Regional Solicitor of the Department in support of the Government's motion.

Most of the contentions advanced by the parties, whether relating to law or to fact, are contentions that were thoroughly examined and fully evaluated by the Board in its decision. Many of them are expressly discussed in the opinion, and the remainder deal mainly with subsidiary points that were left out of the discussion merely in order to avoid making a very long opinion even longer. In the relatively few instances where new matter has been put forward, the Board has carefully studied the new matter, but has been unable to find in it any good reason for changing the decision.

1 Montgomery-Macri Company and Western Line Construction Company, Inc., IBCA-59 and IBCA-72 (June 28, 1963), 70 I.D. 242, 1963 BCA par. 3819, 5 Gov. Contr. 419.

740-673-64- -1

71 I.D. No. 7

With respect to questions of fact, counsel for appellants, in opposing the Government's motion for reconsideration, aptly say:

What, in effect, government counsel argues, is that the testimony of the contractor should be disregarded and only that of Bonneville witnesses considered. The testimony is conflicting in many respects and the decision can be picked to pieces by either side on various findings by citing particular references to the testimony and the exhibits. With a record so voluminous, this could go on indefinitely.

In other words, each party naturally wants us to give to its evidence the preponderating weight, and to draw from the record the inferences most favorable to its position. Hence, each party now seeks to overcome the findings that are adverse to it by calling the record for evidence helpful to it, and by disparaging or disregarding adverse evidence of equal or greater weight.

The Board sought in its decision to resolve the many controverted issues of fact through a critical evaluation of all the testimony and exhibits relevant to each such issue. In so doing, we applied accepted criteria of evaluation, such as demeanor of the witnesses on the stand, inherent credibility of the testimony, existence of circumstances that might cause testimony to be biased, consistency of statements made on direct examination with those made on cross-examination, verification of transactions by contemporary written records, initial acquiescence in conduct that later becomes a subject of controversy, failure of a party to adduce pertinent evidence within the control of that party, and incidence of the burden of proof. The presentations subsequently made by the parties in suport of their respective notions for reconsideration contain nothing which would be sufficient to justify a conclusion that the findings of fact stated in our opinion are erroneous in any material particular.

With respect to questions of law, similar circumstances prevail. The pertinent principles of law are outlined and the pertinent authorities are cited in the opinion. True, the Board did not mention expressly certain legal doctrines that are invoked by one or the other of the parties, such as the rules relating to estoppel and constructive changes that are discussed by Department Counsel and by the Regional Solicitor. This, however, was not because the doctrines in question were overlooked by the Board, but because the circumstances requisite for their application simply do not exist in this case. The inoppositeness of the authorities cited to justify their application here is apparent when the facts established by the present record are compared with the facts to which key importance was attached in those authorities.

June 30, 1964

Department Counsel have advanced the argument that the Board erred in appraising the weight of the evidence because the site of the work was not inspected by an engineer member of the Board. This argument is based upon a motion submitted to the Board under date of August 21, 1956, in which Department Counsel requested that "an alternate member of the Board of Contract Appeals who is an engineer be named to serve as a member of said Board when the above appeal is heard and decided." The motion included the statement that: "If this motion is granted, we suggest that the engineer member of the Board make a personal inspection of all right-of-way tracts involved in the controversy."

The Board did not grant the motion, and no engineer participated in the hearing and determination of the appeals. The questions presented by them involve practical construction procedures to a far greater degree than they involve technical engineering procedures. Obviously, one does not need to be an engineer in order to understand that bulldozing out an access road through cut-over land tends to create debris, and that debris tends to roll downhill; nor to understand that erosion is often a problem on steep slopes, and that disturbance of the soil often tends to create or aggravate erosion; nor to understand that logs left upon an assembly area may be a help or a hindrance in assembling steel, depending upon such factors as the number of the logs, their size, their location, their arrangement, and the types of equipment available for the assembly work. Even if the members of the Board who participated in the hearing and determination of the appeals had been initially unaware of these matters, the evidence presented at the hearing would have fully alerted them to the sig nificance of the various clearing problems discussed in the Government briefs. Hence, a realistic evaluation was possible, and was made.

Neither party requested the member of the Board who conducted the hearing to inspect the tracts involved in the clearing controversy. On the contrary, he was informed by Department Counsel that, after consideration, it had been decided not to request him to visit the site of the work.

The Regional Solicitor has asked the Board to clarify the record with respect to the grounds upon which it accepted jurisdiction over certain of the claims decided in these appeals. The claims in question are those which ordinarily would be classified as claims for breach of

contract, within the meaning of the conventional distinction between. claims under the contract and claims for breach of contract.2

The Board accepted jurisdiction over the claims in question under the authority of the provisions of the Bonneville Project Act which authorize settlement of claims against the Bonneville Power Administration. The pertinent part of the Act reads as follows:

Subject only to the provisions of this Act, the Adminsirator is authorized to enter into such contracts, agreements, and arrangements, including the amendment, modification, adjustment, or cancelation thereof and the compromise or final settlement of any claim arising thereunder, and to make such expenditures, upon such terms and conditions and in such manner as he may deem necessary.

The applicability of the quoted legislation to claims for breach of contract involved in appeals taken to this Board from decisions of contracting officers of the Bonneville Power Administration was determined in the appeal of Paul C. Helmick Company. Because of the extended consideration given the subject in the opinion upon that appeal, the Board assumed there would be no need to mention it expressly in the opinion upon the instant appeals. In order, however, to avoid any possibility of misunderstanding, the Board now states that the ground upon which it accepted jurisdiction over the breach of contract claims here involved was the statutory settlement authority quoted above, and not some generalized theory applicable to claims against agencies other than the Bonneville Power Administration. Appellant's motion for reconsideration is denied, and the Government's motion for reconsideration is also denied.

HERBERT J. SLAUGHTER, Member.

I concur:

JOHN J. HYNES, Member.

Chairman Paul H. Gantt disqualified himself from participation in the consideration of these appeals.

2 See Peter Kiewit Sons' Company, IBCA-405 (March 16, 1964), 1964 BCA par. 4141, 6 Gov. Contr. 281 (e); Commonwealth Electric Company, IBCA-347 (March 12, 1964), 71 I.D. 106, 1964 BCA par. 4136, 6 Gov. Contr. 262; Promacs, Inc., IBCA-317 (January 31, 1964), 71 I.D. 11, 1964 BCA par. 4016, 6 Gov. Contr. 116(a); Weardco Construction Corporation, IBCA-48 (September 30, 1957), 64 I.D. 376, 57-2 BCA par. 1440.

3 Act of August 20, 1937, section 2, 50 Stat. 732, as amended by Act of October 23, 1945, section 1. 59 Stat. 546, 16 U.S.C. sec. 832a (f) (1958). All functions of the Bonneville Power Administrator were transferred to the Secretary of the Interior, and the latter was vested with the power to authorize their performance by any officer, agency or employee of the Department of the Interior by Reorganization Plan No. 3 of 1950, 64 Stat. 1262, 5 U.S.C. sec. 481 note (1958).

IBCA-39 (July 31, 1956), 63 I.D. 209, 56-2 BCA par. 1027. Gen. B-124293 (October 15, 1958).

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