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October 15, 1964

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necessary facilities in connection with “mining operations” on the patented claims and that the larger building “is used for living quarters for crew engaged in these operations."

The use made of the mill site also falls far short of the test laid down in the Alaska Copper Company case, supra. To hold that Wedertz is entitled to a patent in face of the evidence adduced would mean that any prospector could claim as a mill site his base of operations when he is merely prospecting in the vicinity for a discovery. The result could well be the anomalous one of the propector obtaining a patent for a mill site although he is unable to make a discovery which will sustain a valid mining claim. The fact that the claims here have been patented is not a critical distinction since all the indications are that at the time when Wedertz acquired the claims there was no longer any valid discovery exposed on the claims. Of course, since the claims have been patented, this would have no bearing on the title to the land. The point is, however, that, merely because a mineral patent has been issued for a tract of land, all operations undertaken thereon at a later time are not necessarily mining operations so far as the mill site law is concerned.

To repeat, the only activities shown by the record to have been engaged in by Wedertz on the claims are prospecting activities aimed at determining what mineral values exist on the claims. They are indistinguishable from the activities of any prospector who is exploring ground that seems to hold some promise. The prospector too has need of a place to live and to keep supplies and equipment. But clearly a prospector is not entitled to claim a mill site; neither is Wedertz.

Accordingly, the Assistant Director was correct in holding that the evidence compiled at the hearing does not permit the granting of a patent for the Bokee mill site claim at the present time. As this conclusion is dispositive of the case, we need not consider the contention of the Forest Service that an application for a mill site cannot be filed independently of an application for patent to the lode claims for which the mill site is required.

One procedural point remains for consideration. In his statement of reasons for his present appeal Wedertz made a number of assertions as to use of the mill site which do not appear in the transcript of hearing. He also submitted an additional statement of reasons, attaching

1 See United States v. Alvis F. Denison et al., 71 I.D. 144 (1964), and the cases there cited, for the various circumstances under which a valid discovery may be lost with the passage of time.

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an affidavit by Adams making additional statements as to work that had been done on the mill site and the claims.

The Forest Service filed a motion to strike the statements of reasons on the grounds that the factual assertions made in them were unsworn, not subject to cross-examination, and not subject to rebuttal. In reply Wedertz requested an oral argument at which cross-examination could be had.

In accordance with section 7 of the Administrative Procedure Act, 60 Stat. 241 (1946), 5 U.S.C. $ 1006 (1958), the Department's rules of practice provide that where a hearing has been held in a contest the record made at the hearing shall be the sole basis for a decision. 43 CFR, 1964 Supp., 1840.0–8. Therefore any evidentiary matter submitted by Wedertz after the close of the hearing cannot be the basis of any decision in the case.

In this connection it may be noted that the oral argument authorized in the discretion of the Secretary on an appeal to him (43 CFR, 1964 Supp., 1844.6) is not a hearing for the reception of testimony and other evidence. It is simply an opportunity afforded for the presentation of argument orally on the basis of the record already made. It is essentially the same as the opportunity afforded for the presentation of argument to an appellate court.

The additional factual assertions made by Wedertz on his present appeal cannot, therefore, be considered in deciding this case on the merits. They can, however, be considered to determine whether they afford a basis for ordering a further hearing in the case. They have been examined for that purpose. Although they consist of more assertions as to use made of the larger structure on the mill site for storage purposes and work done on the mining claims, there is still no contention that anything more than prospecting or preparations for future mining operations has been done. There is no claim of actual mining operations in the sense of removing ore. Accordingly, the ordering of a further hearing would not appear to be productive of any significant facts which might be pertinent to a decision on the merits.

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 motion of the Forest Service to dismiss the statements of reasons is denied, the request for oral argument is denied, and the decision of the Assistant Director is affirmed.

ERNEST F. Hom,
Assistant Solicitor.

ROBERT E. ALEXANDER

APPEAL OF RICHARD J. NEUTRA AND ROBERT E. ALEXANDER

IBCA-408

Decided October 16, 1964

Rules of Practice: Appeals: Dismissals
In situations where the certifying officer submits to the Comptroller General

a question of law for a decision pursuant to 31 U.S.C. 82d, since he doubts the legality of a payment, the Board will not dismiss the appeal for lack of jurisdiction under circumstances such as present here. The Board is bound by a decision of the Comptroller General, pursuant to 31 U.S.C. 82d, that a specific change order is null and void. However, this does not deprive the contractor-appellant of his contractual right to be heard by the Board concerning changes and extras which have not been disposed of with finality by the Comptroller General.

BOARD OF CONTRACT APPEALS On April 27, 1959, the National Park Service entered into the aboveidentified contract with Richard J. Neutra and Robert E. Alexander, Architects, of Los Angeles, California, under which the Architects were to perform all professional architect-engineering services necessary for the preparation of complete contract working drawings for a Visitor Center-Cyclorama at Gettysburg National Military Park, Gettysburg, Pennsylvania.

Under Article 8 of the above-identified contract the Government obtained an option to require the contractor also to perform all supervisory services with respect to the construction involved for a fee amounting to 2 percent of the total amount of the construction work.

On October 20, 1959, the contract was amended by Change Order No. 1. This change order was accepted by the Architects on October 22, 1959. The Architects were to provide complete supervision of the construction. Paragraph 2 (a) of the change order stated in part:

Supervision shall commence with the starting date of construction and continue through the length of the entire job until final completion and acceptance of the work by the Government.

Paragraph 3 of the change order provided for payment in accordance with Article VIII of the contract, plus additional amounts for travel and contingencies related thereto.

At the time Change Order No. 1 was entered into, the parties contemplated that the work under the construction contract would last about 360 days, and be completed by about November 11, 1960. However, due to unanticipated problems which arose, the completion time of the construction work was extended an additional 425 days, or until January 10, 1962.

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As a result of the delay in completion of the construction contracts, The Architects had to provide professional services for a period of 168 days beyond that contemplated at the time the original contract and Change Order No. 1 were entered into.

In view of the circumstances described above, the Architects wrote to the contracting officer on January 17, 1962, in which they pointed out that they had “added expenses" which they specified in five categories as follows:

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CATEGORY No. 1:

Recurrent costs--insp. & Reports --CATEGORY No. 2:

Foundation and grade adjustment-CATEGORY No. 3:

Extra reimbursements (long distance communica.

tions) ---CATEGORY No. 4:

Contractor's errors or changes.. CATEGORY No. 5:

Owner changes or requests.

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Total.--

70542

17, 591

On October 30, 1962, the Chief, Eastern Office, Design and Construction, who was the contracting officer, wrote to the Assistant Director, Design and Construction, and stated:

It is our belief that the architects have been penalized by the delays, and while we are not legally obligated for payments beyond the contractual amount, we do feel that we have a moral obligation to compensate architectural firms adequately for services rendered to the National Park Service.

In analyzing Mr. Alexander's request for added compensation, we find it difficult to justify the amount of $12.50 hourly rate for supervision; however, we are reminded that Mr. Thaddeus Longstreth, consultant architect, was evidently employed by Neutra and Alexander not only to supervise technical matters but also to preserve the integrity of the design.

The architects have listed five categories in their outline of the expenses incurred. We are impressed only with those expenses incurred under categories 1 and 2 which primarily involve payments to Mr. Longstreth for supervision. Therefore, we are suggesting an arbitrary figure of $8,500 to be paid to Neutra and Alexander as being fair compensation for additional professional services.

On November 26, 1962, the Assistant Director of the National Park Service wrote a memorandum to the Chief, EODC, in which in its pertinent part he stated :

We believe the basis under which you analyzed the situation and reached a conclusion is fair and reasonable, therefore, we concur in the conclusions you have

1 Government Exhibit No. 18, Transcript, p. 15.

ROBERT E. ALEXANDER

October 16, 1964

reached and believe that any suggestions or further ideas from us would be extraneous. Subsequently, the contracting officer issued Change Order No. 3 on February 7, 1963, which, in its pertinent part, states as follows: 2

1. SCOPE OF SERVICES: Due to unforeseen construction problems, time extensions granted the contractor totaled an additional 425 days. It has been determined that the Architect rendered professional services for a period of 168 days for which he (the Architect) was not compensated.

2. PAYMENT: It is agreed that the sum of eight thousand five hundred dollars ($8,500) is just compensation for the additional services outlined under Scope of Services.

You may acknowledge and signify your agreement by signing and returning two copies of this Change Order No. 3.

On February 22, 1963, the Architects accepted 3 Change Order No. 3 and stated as follows:

Thank you for your letter of February 14th, enclosing Change Order No. 3 to our Contract for services on the Visitor Center-Cyclorama Building at Gettysburg National Military Park. Two signed copies as well as a release of claims are enclosed.

We wish to thank you and your staff for being so fair in taking into consideration unforeseen difficulties which we realize you shared with us. As always it is deeply gratifying to be treated as we always have been by your office with dignity and justice.

Ever since we were first called by Mr. Cabot, we have enjoyed an unusually fine relationship, rarely matched by other clients. It has been this atmosphere which enabled us to produce our best.

On March 5, 1963, the certifying officer asked the Comptroller General for an advance opinion whether the amount of $8,500 contained in Change Order No. 3 is a legal obligation and may be paid under the pertinent appropriation.

On April 3, 1963, the Assistant Comptroller General issued a decision in which he held that "the amount of $8,500 covering Change Order No. 3 * * * may not be paid from appropriated funds.” The Assistant Comptroller General based his decision on the following conclusions:

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As indicated above, the architects were required under the terms of Change Order No. 1 to provide supervision for the entire length of the job until final completion and acceptance of the work by the Government for which compen

2 Government Exhibit No. 16, Transeript, p. 15.
a Government Exhibit No. 14, Transcript, p. 12.
* Dec. Comp. Gen. B-150094 ; Government Exhibit No. 13, Transcript, p. 12.

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