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is not proper for acquisition in satisfaction of rights acquired by Indians under the Indian Allotment Act.

The case is substantially indentical with that of Amos A. Hopkins (Dukes), Colorado 0112669, decided by the Secretary on December 20, 1963. In that case an Indian allotment application for 160 acres was rejected for the reason that the tract would support only two units of livestock on a year-round basis, although grazing was not possible during the entire year, whereas in the area an economic ranch unit would require enough land to support in excess of 100 units of livestock. For this reason it was concluded that the land could not be properly classified for an Indian allotment.

An Indian applicant is not, of course, deprived of his right to an allotment when his application is rejected. He is merely required to apply for other land that is suitable for acquisition under the Allotment Act.

Therefore, the decision appealed from is affirmed.

JOHN A. CARVER, JR. Assistant Secretary of the Interior.

APPEAL OF EDISTO CONSTRUCTION COMPANY

IBCA 409

Decided February 28, 1964 Contracts: Contracting Officer—Contracts: Delays of Contractor Where a claim for a time extension is presented to the contracting officer, it is

the duty of the latter to make an impartial and objective determination of all questions that are directly relevant to the extent of the delays upon which such claim is founded.

Contracts: Appeals—Rules of Practice: Appeals: Timely Filing
The timeliness of an appeal is governed by the period of time elapsed between

the date when the findings of fact and decision were received by the contractor and the date when the notice of appeal was mailed or otherwise furnished to the contracting officer. The day on which the findings of fact and decision were received by the contractor is not included in the

computation. Contracts: Contractor-Rules of Practice: Appeals: Standing to Appeal An appeal will not be dismissed for technical defects consisting of the inad

vertent omission of the corporate name of the contractor in the notice of appeal and the substitution therefor of the name of the contractor's repre

sentative or officer. Contracts: Appeals-Rules of Practice: Appeals: Standing to Appeal an appeal will be remanded to the contracting officer for issuance of new

or supplemental findings of fact and decision where it appears that the con

February 28, 1961

tractor was in receivership prior to the filing of the notice of appeal and no information is contained in the appeal file concerning the present status of the receivership or as to the identity of the legal owners and representatives of the contractor.

BOARD OF CONTRACT APPEALS

The Government has moved to dismiss this appeal on the following grounds:

"1. The letter of October 31, 1963, received November 7, 1963, does not use proper words or disclose an intention to appeal the decision of the Contracting Officer by the Contractor, the Edisto Construction Company, under its Contract No. 14-16-0004-2171.

“2. That E. J. Ayers, Jr., does not show capacity to appeal from the Findings and Decision of the Contracting Officer. He neither signs his letter of October 31, 1963, in an official capacity nor does the name of the Corporation Contractor appear.

“3. This Appeal is docketed as 'Appeal of E. J. Ayers, Jr.,' IBCA409, whereas the Edisto Construction Company is a Corporation of the State of South Carolina, a legal entity and the Contractor, and distinct under the law from E. J. Ayers, Jr., an individual and not a party to the said contract.

64. The 'so-called' appeal letter from E. J. Ayers, Jr., was not sent to the Contracting Officer as directed under the contract but mailed directly to the Secretary of the Interior where it was received 31 days after the time the Findings and Decision was received by the Corporation, at its place of business.”

Concerning the alleged defects specified in paragraphs 1 through 3 above, the language used in the letter is not as precise as one could wish, but we conclude that it shows an intent to appeal on behalf of the Edisto Construction Company from the decision of the contracting officer, dated October 2, 1963. The pertinent portion of the letter is as follows:

This letter may reach you one day late since I was not told by Mr. Barrineau or anyone else that I had the right to appeal my case to you.

# * * I certainly cannot give you all of the details in this letter, but am sure that Mr. Barrineau, Contracting Officer at the Bureau of Sport Fisheries and Wildlife in Atlanta can forward them to you. * * * Mr. Barrineau stated in his report of 2 October 1963 that there was less than one month total of bad weather throughout the duration of this job. *** (Italics supplied.)

It is true, as Department Counsel points out, that the correct name of the contractor is the Edisto Construction Company, and that that name does not appear any place in the purported notice of appeal. However, the contract is identified correctly by number in the heading of the letter, with the name and location of the project, as follows:

“Re: Contract No. 14-16-0004–2171

Orangeburg Fish Hatchery

Orangeburg, S. C.” Mr. E. J. Ayers, Jr., who signed the notice of appeal, also signed the contract as President of the Edisto Construction Company. Other letters in the appeal file from the Edisto Construction Company are on the company's letterhead, bearing the name "Edisto Construction Co.” Some of those letters are signed simply "E. J. Ayers, Jr.” The notice of appeal was not on the company letterhead. However, the original claim letter of July 29, 1963, bore the company letterhead and was also signed merely E. J. Ayers, Jr., without giving his official title.

The Board will not dismiss an appeal for technical defects consisting of the inadvertent omission of the official capacity of the person signing the notice of appeal or of the corporate name of the contractor.

The defect of misdirection of the notice of appeal, described in paragraph 4 above, is not a fatal one, as we have held on several occasions.

The Government's Statement of Position also states that the notice of appeal letter was received in the Office of the Solicitor, Department of the Interior, “on the 31st day after receipt of Findings and Decision, i.e., November 7, 1963.” The Findings and Decision were received by Edisto Construction Company on October 8, 1963, according to the Post Office Return Receipt in the file. The day of receipt is not included in the reckoning of the period of 30 days in which the contractor may appeal. Hence, October 9 was the date the period began to run, and November 7 was the 30th day after receipt of the Findings and Decision. Therefore, the time for taking an appeal expired at the end of that day, that is, at midnight on November 7, 1963.3

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2

1 Barkley Pipeline Construction, Inc., IBCA-264 (April 6, 1961), 68 I.D. 103, 61-1 BCA par. 3006, 3 Gov. Contr. 621 (g).

2 Bushman Construction Company, IBCA-193 (April 23, 1959), 66 I.D. 156, 59-1 BCA par. 2148, 1 Gov. Contr. 312 (mailing of notice of appeal to Board instead of to constracting officer not "jurisdictional" defect); Larsen-Meyer Construction Company, IBCA-85 (November 24, 1958), 65 I.D. 463, 58–2 BCA par. 1987 (mailing of notice of appeal to Department Counsel instead of to contracting officer not fatal). Accord: Vitro Corporation of America, IBCA-376 (November 7, 1963), 70 I.D. 479, 1963 BCA par. 3923, 5 Gov. Contr. 565 (i) (mailing of supporting brief to the Board instead of to the contracting officer not fatal).

3 Lewis Construction Company, Inc. and S. L. Boutelle, IBCA-340 (July 3, 1963), 70 I.D. 352, 1963 BCA par. 3779, 5 Gov. Contr. 363(e), and cases cited therein. Accord: The Cardell Company, IBCA-384 (September 3, 1963), 70 I.D. 405, 1963 BCA par. 3847, 5 Gov. Contr. 515(e).

February 28, 1964

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Accordingly, the appeal is timely.

Moreover, the Findings and Decision of the Contracting Officer dated October 2, 1963, do not identify the decision as a final decision, and do not call to the attention of the contractor his right to appeal therefrom within 30 days.* It is not sufficient that a separate transmittal letter, describing the decision as a “Findings of Fact," contains a statement that:

The Findings have been prepared in accordance with Clause 5 of Standard Form 23-A, General Provisions (Construction Contracts).

The language of the decision must in substance fairly and reasonably inform the contractor that a final decision is intended and that pursuant to Clause 6, Disputes, of the contract, he may appeal within 30 days from the receipt of the decision."

Two other matters are of concern to the Board. First, the notice of appeal states in effect that it is based on the disallowance by the contracting officer of a claim of excusable delay because of "inclement weather conditions,” from January 1962 until March 1963, when it is alleged there were 181 days of precipitation and temperatures below freezing on 87 days. These data are not sufficient. The contractor must identify all of the specific dates on which he alleges it was not possible to perform work under the contract because of “unusually severe weather” (not merely inclement weather) based on the contractor's daily logs or similar records, in order to comply with the requirements of Clause 5, and to enable the contracting officer to make findings of fact with respect to such dates, as required by the clause.

The findings of fact of the contracting officer should include climatological data from official records of the Weather Bureau, Department of Commerce, as to the dates involved, and for about ten years prior thereto, as well as excerpts from daily logs of the Government Inspector or other documents concerning the days not worked and the reasons therefor. The findings should also include a tabulation comparing the “reasons for loss of time as advanced by the contractor and the reasons as ascertained by the contracting officer," 6 and should state those reasons.

* Earl B. Bates Nursery, IBCA-368 (May 13, 1963), 70 I.D. 163 1963 BCA par. 3738, 5 Gov. Contr. 289(a) ; Production Tool Corporation, IBCA-262 (April 17, 1961), 68 I.D. 109, 61-1 BCA par. 3007, 3 Gov. Contr. 324, and cases cited therein.

6 Barkley Pipeline Construction, Inc., note 1 supra, and cases cited in note 4 supra.

& Paul A. Teegarden, IBCA-382 (September 27, 1963), 70 I.D. 436, 1963 BCA par. 3876, 5 Gov. Contr. 515 (a).

The second matter of concern is the status of the receivership of the Edisto Construction Company. On page 9 of the contracting officer's findings and decision, the following statement appears:

The Contracting Officer also received a letter dated May 6, 1963, from Mr. O. Harry Bozardt, Jr., Attorney, pertaining to the Edisto Construction Company. Mr. Bozardt stated that:

As you are no doubt aware Edisto Construction Company was placed in receivership on the 20th day of February, 1963, and by proper Court Order I was duly appointed receiver of said company. During the process of marshalling the assets of Edisto Construction Company I find that the United States is indebted to the said Edisto Construction Company for some $20,000 for buildings which were erected at the U.S. Fish Hatchery here in Orangeburg.

This letter is to notify you that payment of this balance will be made to me as receiver for said Construction Company to be disbursed according to law.

No further information as to the receivership is provided in the findings of fact or in appeal file, nor is the letter from the receiver included in the appeal file.

Conclusion

The appeal is remanded to the contracting officer to proceed in accordance with these directives.

1. The Contracting Officer should present an opportunity to the Edisto Construction Company or its legal representatives to present data or other documents as to the specific dates when it is alleged that work could not be performed under the contract because of unusually severe weather.

2. Based on this data, or on the failure to submit data within a reasonable time, the Contracting Officer should issue a new or supplemental findings of fact and decision with respect to the days allegedly lost by reason of unusually severe weather, in accordance with the foregoing opinion and as amplified in the Teegarden decision, note 6 supra.

3. The new or supplemental findings of fact and decision should dispose of all matters concerning the receivership, its present status and the identity of the present legal owners and legal representative of the Edisto Construction Company.

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