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way the decision appealed from was in error, or that their preferenceright claim should not be rejected for failure to comply with the requirements of the application regulations, 43 CFR 250.12 (a) and (b) (1). The appeal of Andreas was dismissed because he was not a party in interest and had no standing to appeal. The Butte Ski Club did not appeal from the land office decision.

Mrs. Redmond has filed a protest against the appellants' appeal to the Secretary on the grounds that it was not filed within the time allowed by the Department's rules of practice. The charge is without merit. The Bureau's decision was received by the appellants' attorney on January 21, 1963, as evidenced by a registry receipt card contained in the record. The appellants' notice of appeal was transmitted on February 18, 1963, and was received by the Department on February 20, 1963, within the time allowed for filing an appeal. The appellants have submitted evidence that a copy of their notice of appeal was served on Mrs. Redmond on February 19, 1963. The appellants' statement of reasons, required to be filed within 30 days after filing of their notice of appeal, was received by the Department on March 11, 1963, and a copy was served on Mrs. Redmond on March 12, 1963, as evidenced by a registry receipt card contained in the record. The appeal, therefore, will be considered on its merits.

The appellants contend, in substance, that Andreas succeeded to the interest of the Delmoes and is entitled to assert the rights of his predecessors in title, that, through his attorney, Andreas wrote to the land office on April 26, 1961, and, in effect, asserted the rights of his predecessors in interest and asserted his rights as a preference-right claimant, and that Mrs. Redmond did not qualify as an applicant for the land in question, and the Department is without authority to award the land to her.

Answering the last allegation first, the appellants apparently are contending that since Mrs. Redmond was not the owner of contiguous land, she was not qualified, under the provisions of 43 CFR 250.7(b), to apply to have the land sold. However, the record shows that the land in question is entirely surrounded by land held in non-Federal ownership and is, therefore, subject to sale under the provisions of 43 CFR 250.6 without regard to whether the public sale applicant owns contiguous land.

Considering now Andreas' claim to a preference right, the statute and the regulations provide that the owners of contiguous lands have a preference right, for a period of 30 days after the highest bid has been received at a public sale, to purchase the land offered for sale at the highest bid price. A preference right must be supported by proof

February 18, 1964

of the claimant's ownership of the whole title to the contiguous land, and the failure to submit satisfactory proof to the land office during the 30-day period after the highest bid has been received will cause the preference right to be lost as to the particular public sale. 43 U.S.C., 1958 ed., sec. 1171; 43 CFR 250.11 (b).

In this instance, it was necessary that any preference-right claimant assert his claim within 30 days after May 1, 1957, and, within the same period, submit satisfactory proof of his ownership of contiguous land. During that period, the only claims asserted were those of the Delmoes and the Butte Ski Club, submitted by Andreas as their agent. Similarly, the proof of ownership of contiguous land was limited to the same parties.

In his appeal to the Director, Bureau of Land Management, Andreas submitted evidence that the Delmoes conveyed to him a part of the land upon which their preference-right claim was based on June 11, 1956, and that they conveyed the balance of that land to him on September 2, 1958. On April 26, 1961, Andreas advised the land office that he was the successor in interest to Otto and Delena Delmoe.

It appears that Andreas may have been entitled to assert a preference-right claim in his own right on May 31, 1957, when he asserted the claims of the Delmoes and the Butte Ski Club. However, he did not attempt to do so, and no such claim could be considered on April 26, 1961.

As stated by the Bureau, the Department has held that where the owner of land contiguous to an isolated tract of public land offered for sale properly asserts a preference right to purchase the land, and then disposes of the contiguous land after the close of the period allowed for the assertion of preference-right claims and before he receives a cash certificate or patent for the isolated tract, he does not thereby lose his preference right to buy the isolated tract. Martin J. Plutt et al., 61 I.D. 185 (1953). Thus, the Delmoes maintained their preference right to purchase the offered land notwithstanding their conveyance of the land upon which the preference right was based after the period for asserting the claim. Since Andreas has submitted no evidence that the Delmoes intended or attempted to assign

2 Although part of the contiguous land was conveyed by the Delmoes to Andreas on June 11, 1956, the deed was not recorded until September 18, 1958. This is why the certificate of ownership of adjoining land submitted on May 31, 1957, in support of the Delmoes' preference-right claim stated that the county records showed the Delmoes to be the owners when in fact they were not. No explanation appears as to why Andreas did not record the conveyance of June 11, 1956, and assert a preference-right claim on his own behalf within the 30-day period following the sale.

to him their preference right and since he did not assert one on his own behalf, there is no basis for holding that he had one.3

The appellants have cited the Department's decision in Charles H. Hunter, 60 I.D. 395 (1950), as authority for the proposition that once a right is asserted, though done informally and not in strict compliance with the provisions of the applicable statute, it will be recognized and the party asserting the right will be given notice of what need be done to comply with the provisions of the statute. That decision held that a preference-right claim for an isolated tract offered at public sale may be asserted by a person who acquires the ownership of contiguous land after the date of the sale but during the period of time allowed for the assertion of preference-right claims and that a preference-right claimant is not necessarily required to submit, prior to the expiration of that period, proof that he is the owner of contiguous land but may submit such proof within a reasonable time thereafter. The holding of that decision was subsequently modified by the amendment of the regulations to require that proof of ownership of contiguous land be submitted within the same 30-day period allowed for the assertion of preference-right claims. See Fred and Mildred M. Bohen et al., 63 I.D. 65 (1956).

Aside from the change in the regulations, the holding in the Hunter case, supra, is not applicable to this case. Hunter asserted a preference-right claim within 30 days after the high bid but failed to submit proof of his ownership of contiguous land within that time. Andreas did not assert any claim in his own right until four years after the bidding was completed. At that time, the assertion of a claim could gain him no rights, and he was, therefore, not deprived of the opportunity to perfect the rights he asserted in his letter of April 26, 1961, as he had no rights to perfect. Inasmuch as he did not assert a claim during the period allowed for that purpose, he was properly not included as a party to the decision awarding the land as between claimants. As Andreas was not a party to that decision, he had no standing to appeal from it, and the dismissal of his appeal by the Bureau was proper. See 43 CFR 221.1.

With respect to the appeal as it concerns the Delmoes, in their appeal to the Secretary, as in their appeal to the Director, Bureau of Land Management, they have not attempted to show any error in the decision appealed from nor have they submitted any evidence of compliance with the regulations.

This is not to be interpreted as a ruling that the preference right of an owner of contiguous land is a right that can be assigned, even to a purchaser of the contiguous land.

February 20, 1964

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (sec. 210.2.2A (4) (a), Departmental Manual; 24 F.R. 1348), the decision appealed from is affirmed.

ERNEST F. HOм,

Assistant Solicitor.

IBCA-412

APPEAL OF COSMO CONSTRUCTION COMPANY

Decided February 20, 1964

Contracts: Appeals-Rules of Practice: Appeals: Generally

The Board of Contract Appeals has authority to apply equitable principles in determining matters over which it has jurisdiction. It has authority to direct contract administration action by the contracting officer if the contractor has a substantive right to such action, and if such action pertains to a matter over which the Board has jurisdiction. Its powers and those of the Office of the Survey and Review complement each other.

Contracts: Appeals-Rules of Practice: Appeals: Timely Filing

The Board of Contract Appeals does not have jurisdiction to entertain an appeal with respect to a claim which the contracting officer has neither determined, nor refused to determine, nor delayed unreasonably in determining.

BOARD OF CONTRACT APPEALS

Department Counsel transmitted the appeal file and simultaneously moved the Board to dismiss the appeal on the grounds (1) that the Board lacks jurisdiction since the contracting officer has not rendered a final decision as yet; (2) that the Board cannot direct a contract administration action; and (3) that the Board does not possess general equity powers. He contends that, since the appeal is premature, and does not set forth a cause of action upon which the Board may grant relief, it should be dismissed.

Appellant, through its President, opposed the motion and stated:

The purpose of filing a Notice of Appeal was to obtain relief as provided for under the terms of the contract. The ultimate end sought by the Appellant is an "Equitable Adjustment." In Appellant's prayer for relief, any reference to "equity" is not intended to imply that the Board of Contract Appeal is a Court of Equity, but rather the enforcer of the terms of the contract to the extent that the administrative action provided for therein be adhered to by the Contracting Officer. ***

*** Contracting Officer was repeatedly requested by written communications to take the administrative action required to relieve the Appellant of the burden imposed upon it as a result of the changed conditions. The Contracting Officer's

failure in this regard constituted a proper basis on which the Appellant was entitled to file its Notice of Appeal, and vested in the Board of Contract Appeal the necessary jurisdiction to grant the relief prayed for.

Jurisdiction of the Board and "Equity"

We agree with appellant's interpretation concerning the authority of the Board to apply equitable principles in determining matters over which it has jurisdiction. In Eastern Maintenance Company,' the Board emphasized that two Court of Claims decisions 2 would provide the basic guidelines for the proper exercise of the functions of the Board. These and other-Court of Claims decisions enjoin contracting officers, boards of contract appeals, and the heads of departments "to prevent unjust and inequitable results." 3

In Globe Indemnity Company v. United States,* Judge Whitaker stated:

From this case two lessons are to be drawn: (1) contracting officers and heads of departments should exercise the great powers conferred on them by these contracts to do equity; they should not feel under obligation to take advantage of technicalities, where to do so would defeat justice; (2) contractors must study their contracts and insist on compliance with their terms; before relying on any promise they should ascertain that it is made by a person having authority to make it. (Italics supplied.)

Judge Madden construed the authority and jurisdiction of the Armed Services Board of Contract Appeals broadly in McWilliams v. United States: 5

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 dissatified 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. * * *

The authority given to the Interior Board of Contract Appeals is broader than the authority given to the Armed Services Board of Contract Appeals. But even in absence of any difference-Judge Madden's counsel would equally apply to either Board.

1 IBCA-275 (November 29, 1962), 69 I.D. 215, 1962 BCA par. 3583.

Globe Indemnity Company v. United States, 102 Ct. Cl. 21 (1944), cert. den. 324 U.S. 852 (1945); McWilliams Dredging Company v. United States, 118 Ct. Cl. 1 (1950).

3 H. B. Fowler & Company, Inc., IBCA-294 (October 23, 1961); 61-2 BCA par. 3168, 3 Gov. Contr. 551 (c), and decisions of the Court of Claims cited therein.

4 Fn. 2 supra, at 38.

Fn. 2 supra, at 16-17.

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