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February 20, 1964
After citing Globe and McWilliams, the Board stated in Eastern Maintenance Company, that it is
cognizant of the limitations on its powers "to do equity" outside of the four corners of the contract. That lack of jurisdiction does not, however, restrict the Board's power to act equitably within the four corners and to make an equitable adjustment promised to the contractor by the explicit terms of the contract. Accordingly, what the contracting officer, through inadvertence or error, has failed to do by way of completing such an equitable adjustment, the Board will do.
Directions to Contracting Officers
Department Counsel asserts that the Board "has no authority to direct a contract administration action by a Contracting Officer." This statement, like almost any generality, is half right, and half But Department Counsel seems to misunderstand the basis. why in certain situations the Board will decline jurisdiction. Hence, a discussion of this side issue seems necessary. In John Martin Company, Inc., the Board mentioned that there were certain disputes concerning which Boards will not take jurisdiction. Examples are:
1. Request for the immediate preparation and payment of partial or final estimates.8
2. Request for prompt payments.9
3. Request for remission of liquidated damages pursuant to 41 U.S.C., 1958 ed., 256a.10
4. Request that a claim be compromised instead of adjudicated." 5. Request for reinstatement of a terminated contract.12
6. Request for cancellation of a contract.13
Analysis of the foregoing rulings discloses that, in general, the reasons for their holdings were that the matter in issue either was one as to which the contracting officer had made no decision whatsoever, or was one for which no relief was expressly or impliedly authorized by the contract, or was one as to which the contractor had no substantive right to relief.
This declination of jurisdiction by the Board, which is basically appellate in character, and which must act within the framework of contract provisions and legal rules, does not mean that an aggrieved contractor is without a remedy in the Department of the Interior.
Fn. 1 supra, at 220.
IBCA-316 (September 21, 1962), 1962 BCA par. 3486, 4 Gov. Contr. par. 520 (d). John Martin Company, Inc., fn. 7 supra.
10 Monarch Lumber Company, IBCA-217 (May 18, 1960), 67 I.D. 198, 60-2 BCA par. 2674, 2 Gov. Contr. par. 290; Samuel N. Zarpas, Inc., IBCA-24 (January 4, 1956), 63 I.D. 1, 6-7, 6 CCF par. 61,756.
11 M. Hoard, IBCA-6 (May 11, 1955), 6 CCF par. 61,665.
12 Adams Manufacturing Company, ASBCA No. 2555 (May 31, 1955).
18 Missouri Paper Stock Company, ASBCA No. 2198 (August 25, 1954).
The above enumerated instances are typical of situations in which relief may be obtained by review from the superiors of the contracting officer, from the head of a bureau or agency, or, on the secretarial level, from the Office of Survey and Review.14 The just released 1963 Annual Report of the Secretary of the Interior, Stewart L. Udall, states: 15
The Office of Survey and Review was established during the year to strengthen management processes in the Department with special emphasis upon financial policies and methods, procedural modernization, auditing policies, contract review, and other potentially sensitive subjects. Creation of this Office was one of the most significant management improvements during the year. (Italics supplied.)
The powers of that office do not conflict with the jurisdiction of the Board but the respective powers rather complement each other. An example may suffice to illustrate. The Office of Survey and Review has a broad administrative jurisdiction over the correcting of mistakes in bids asserted prior to award." That office may also reform contracts because of mistakes discovered after award in specifically stated situations.18 On the other hand, the limitations upon the jurisdiction of the Board inherent in its charter 19 and in the forms of contract "Disputes" clauses now standard 20 are such that matters which call for application of the legal rules relating to mistakes or reformation rarely come within the cognizance of the Board.21
The appeal file contains a letter to appellant from the "Project Construction Engineer," 22 Charles H. Clark, of January 16, 1964,23 which, in its pertinent part, reads as follows:
14 These statements do not apply to liquidated damages that have been validly assessed. Authority to remit them is vested in the Comptroller General, 41 U.S.C., 1958 ed., 256a. The function of making recommendations to him for their remission has been delegated to the Solicitor, 24 F.R. 1348, 210 DM 2.2B (2).
15 Annual Report 1963, The Secretary of the Interior, Stewart L. Udall, Government Printing Office (1963).
16 At p. 466.
17 405 DM 6.2A (1).
18 405 DM 6.2A (2).
19 43 CFR 4.4; 211 DM 2.1.
20 Clause 6 of Standard Form 23A (April 1961 Edition) for construction contracts; Clause 12 of Standard Form 32 (September 1961 Edition) for supply contracts.
21 Decisions involving situations of this latter type are Clifford W. Gartzka, IBCA-399 (January 22, 1964); Framlau Corporation, IBCA-228 (August 18, 1961), 61-2 BCA par. 3116, 3 Gov. Contr. par. 472; United Concrete Pipe Corporation, IBCA-42 (May 31, 1956), 63 I.D. 153, 6 CCF par. 61,870.
The Board has not been favored by either party with a description of the functions of the "Project Construction Engineer" that is sufficiently definite and detailed to show the extent of his authority as an "authorized representative" of the contracting officer, as defined in Clause 1 of Standard Form 23A (April 1961 Edition). The contract does not contain any reference to him.
23 The appeal was docketed on December 18, 1963, roughly one month before the date
of this letter.
February 20, 1964
In order that a final decision as to an equitable adjustment may be made at an early date, it is suggested that you submit your claim as soon as possible and that you provide for the contracting officer's consideration any pertinent factual detail data which you have available in support of your claim. If you desire to have a conference to discuss the final adjustment, such a conference can be arranged at a mutually agreeable date in the near future. It is recommended, however, that you submit your claim in sufficient time to allow us at least 10 days to review the claim prior to such a conference.
If it is still your intention to not submit cost data in support of your claim, please advise promptly so that the Government may proceed without this information.
Appellant included in the appeal file its reply of February 3, 1964, which in its pertinent part, reads as follows:
Your suggestion that our Claim be filed on the basis of our actual cost and that further discussion of this matter be held at an early date are acceptable to this firm. We will proceed in the near future to file our detailed request utilizing actual cost figures, where possible; but keeping in mind that a portion of the effects of the Changed Condition have not yet been completed. We will at the time of such filing suggest a date for further discussion. When our detailed request is submitted, you will be advised concerning the use of actual cost figures and the necessary qualifications that will be placed upon the use of such figures in any negotiations that are of a preliminary nature. (Italics supplied.)
These instruments, and other evidence contained in the appeal file, establish beyond any doubt that whatever controversies exist between the Contracting Officer and the appellant, they are still in the claims. stage, and that no findings of fact or decision has been rendered by the Contracting Officer or his authorized representative. Hence, the appeal is premature.24
The contracting officer has not refused to make an equitable adjustment, nor does he appear to have unreasonably delayed a determination of its amount. On the contrary, he has already made a tentative adjustment on the basis of the data then available and, as the foregoing quotations indicate, is engaged in the process of obtaining and evaluating such additional data as may be needed for a final decision. Nothing has been presented to the Board which would authorize or require it to take the drastic action, urged by the contractor-appellant, of assuming jurisdiction pending the conduct of negotiations and
24 McLinn Construction Company, IBCA-369 (July 24, 1963), 1963 BCA par. 3798; John Martin Company, Inc., fn. 7 supra; Barkley Pipeline Construction, Inc., IBCA-264 (April 6, 1961), 68 I.D. 103, 61-1 BCA par. 3006, 3 Gov. Contr. par. 271; Westinghouse Electric Supply Company, IBCA-107 (July 30, 1957), 57-2 BCA par. 1365; Urban Plumbing and Heating Company, IBCA-43 (November 21, 1956), 63 I.D. 381, 56-2 BCA par. 1102; Gila Construction Company, Inc., IBCA-79 (September 21, 1956), 63 I.D. 378, 56-2 BCA par. 1074.
pending the issuance of a decision or findings of fact by the Contracting Officer.25
Appellant has submitted motions to hold the proceeding in temporary abeyance and to require completion of the appeal file. These motions necessarily are rendered moot by reason of our determination that jurisdiction is lacking over the appeal.
1. All motions of the Department Counsel and of the Appellant are denied.
2. The appeal is dismissed as premature.
PAUL H. GANTT, Chairman.
HERBERT J. SLAUGHTER, Member. THOMAS M. DURSTON, Member.
JOHN E. BALMER ET AL.
Decided February 24, 1964
Indian Allotments on Public Domain: Classification
An Indian allotment application for nonirrigable grazing land is properly rejected on the ground that the land applied for is not proper for acquisition as an Indian allotment because it contains insufficient forage to comprise an economic grazing unit.
APPEAL FROM THE BUREAU OF LAND MANAGEMENT
John E. Balmer and James W. Balmer have appealed to the Secretary of the Interior from a decision of the Division of Appeals of the Bureau of Land Management dated December 21, 1961, affirming a decision of the land office at Phoenix, Arizona, which rejected their applications for Indian allotments of 160 acres and 120 acres, respectively, of public land under section 4 of the act of February 8, 1887, as amended (25 U.S.C., 1958 ed., sec. 336).
25 The authorities upon which appellant chiefly relies are Sheriden-Murray, ASBCA No. 7615 (November 26, 1962), 1962 BCA par. 3604; Leader Manufacturing Company, ASBCA No. 4416 (July 31, 1958), 58-2 BCA par. 1877; and A. C. Clothing Manufacturing Company, ASBCA No. 4065 (June 21, 1957), 57-1 BCA par. 1321. These cases stand for the propositions that (1) an express or implied refusal to decide is itself an appealable decision, and (2) a dispute will not be remanded for the making of a formal decision by the contracting officer if the record already shows what that decision would hold. Here, however, the contracting officer has not refused to decide, and the record does not reveal what will be the amount of the equitable adjustment allowed by his final decision.
February 24, 1964
The land office rejected the applications on the ground that the land described in each application is nonirrigable grazing land which does not constitute an economic grazing unit. The appellants contend that, once having found that they are Indians entitled to allotments of the public domain and that the land applied for is nonirrigable grazing land, the Bureau of Land Management has no authority to reject their applications because it is of the opinion that the land does not comprise economic units.
The statute upon which the appellants rely provides for Indian allotments of public land not otherwise appropriated, not to exceed 40 acres of irrigable land, 80 acres of nonirrigable agricultural land, or 160 acres of nonirrigable grazing land to any one Indian.
Since the land is in Arizona, it was withdrawn by Executive Order 6910 on November 26, 1934, from settlement, location, sale, or entry and reserved for classification pending the determination of the most useful purpose for which it might be used. Under section 7 of the Taylor Grazing Act, as amended (43 U.S.C., 1958 ed., sec. 315f), the Secretary of the Interior is authorized, in his discretion, to examine and classify land which is more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants or more valuable or suitable for any other use than for grazing purposes or proper for acquisition in satisfaction of any outstanding lien, exchange, scrip rights, or land grant and to open it for disposal in accordance with the classification made under an applicable public land law.
The land described in the two applications is grazing land and is presently leased under the Taylor Grazing Act for grazing purposes. Since, however, the forage is so scanty, the land is grazed as a part of a large acreage during the portions of the year which follow the spring and fall rainy seasons and cannot be relied upon to furnish during these periods of seasonal use more than the equivalent of the needs of from two to three cows per section on a yearlong basis. The two tracts applied for aggregate less than half a section.
Since the intent of the Indian Allotment Act is to provide, in effect, a homestead which will constitute the source of a livelihood for an Indian family, as indicated by the language of the act which allows the different acreages of land suitable for different purposes, it is within the authority of the Secretary of the Interior to determine that 160 acres of grazing land that is incapable of supporting a ranch family