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COLOR OR CLAIM OF TITLE—Continued

IMPROVEMENTS--Continued
2. Where the requirements for a class 1 color of title claim have been

met as to a tract of land and the United States, on the mistaken
assumption that the tract is privately owned, takes and floods
a portion of the tract which contains all the required improve
ments or cultivation, the class 1 claim is not lost as to the remain-
ing portion of the land which is neither improved nor cultivated.-

214

CONFIDENTIAL INFORMATION
1. Although reports by Departmental personnel on their examinations

of mining claims are generally considered as confidential intra-
departmental communications which are not to be made available
to mining claimants, disclosure of the factual information in such
reports will be permitted.--

161

CONSTITUTIONAL LAW

1. A Congressional directive for the review by the Secretary of the

Interior of areas with wilderness characteristics within a 10-year
period affects neither the Executive's authority to make recom-
mendations nor the authority of Congress to enact legislation,
should the specified time period not be complied with----

97

CONTRACTS

106

CONSTRUCTION AND OPERATION

Actions of Parties
1. Where in a motion for reconsideration the appellant questions the

Board's finding that a substantial portion of a claim for rock
excavation represents work performed below subgrade for which
the contract provides no basis for reimbursement but fails to show
that the contracting officer or the Government engineering person-
nel concerned were involved in any way in the appellant's decision
to proceed with the subgrade excavation, the Board's earlier deci-
sion that the work so performed was voluntary and not of the

character for which the Government is liable is affirmed.---
2. Under a contract for construction of a Visitor Center including a

Rotunda and office wing, containing a special clause for precedence
of work on the Rotunda over the work in other areas "if at all
possible," but without otherwise requiring any order of sequence
of the work, where the work on the Rotunda was delayed during
investigation of foundation conditions in the Rotunda area, and
where in the meantime the contractor was directed to proceed
with work on the office wing but failed to do so until it was able
to commence work on the Rotunda, and after which time the con-
tractor worked concurrently in both areas, the actions of the
parties and the interpretation of the contract as a whole do not
support a claim for additional compensation based on an alleged
change in the sequence of the contractor's operations---

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or

365

35

CONTRACTS—Continued
CONSTRUCTION AND OPERATION-Continued

Buy American Act
1. All territories and possessions, including Guam, are considered loca-

tions of domestic sources of supply under the Buy American Act;
but Guam is not limited to domestic sources in its purchases for
use on Guam because under the rule of statutory construction
expressio unius est esclusio alterius, it may be concluded that Con-
gress intended to exclude Guam from the enumerated entities
whose purchases for use for construction within their

boundaries would be limited to domestic sources.

Changed Conditions
1. Under a contract for demolition of masonry, excavation, and building

a structural shell at the base of the Statue of Liberty, where the
specifications contained a general requirement for underpinning of
existing structures adjoining new work, and where the contractor,
from a site inspection and pre-bid discussions, was aware of the
possibility that such underpinning would be required to support
the foundation of a perimeter wall, the depth of which was not
shown in the drawings and was not known by the Government, the
contractor's claim that upon excavation it found that underpinning
was necessary and that the expense of underpinning such wall
should be paid as a changed condition is denied for lack of proof
that the wall's foundation was unusually shallow or abnormally

constructed ----
2. Under a contract providing for extra compensation for excavation of

rock, which contained definitions of solid rock, ledges, and
boulders, where the contractor encountered a changed condition
consisting of many boulders of sizes exceeding those represented
by the contract, the contractor is not entitled to an equitable ad-
justment on the basis that such boulders constituted solid rock,
in the absence of timely notice to the contracting officer of the
condition so that appropriate corrective measures could be con-
sidered; and in absence of a preponderance of evidence supporting
the contractor's claim, the equitable adjustment allowed by the
contracting officer's findings with respect to the volumes of

boulders excavated will be affirmed and the appeal denied------
3. Under a contract for the construction of a road requiring the use of

a soft type of rock known as oolite, to be obtained from adjacent
borrow a reas, and where no subsurface investigations had been
conducted by the Government to determine the availability of
oolite in sufficient quantities, the contractor was entitled to rely
upon the representations in the contract with respect to the pres-
ence of sufficient oolite materials. Upon excavation of borrow pits
designated by the Government when the contractor encountered
much harder rock that was difficult to excavate and crush, and
little if any oolite material, the condition so encountered was a
changed condition of the first category within the meaning of
Clause 4 of Standard Form 23A. The direction by the contracting
officer that the hard rock be utilized for constructing the road
was a constructive change and the contractor is entitled to an
equitable adjustment upon either theory, whether a changed con-
dition was encountered or a constructive change was made------

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253

CONTRACTS—Continued
CONSTRUCTION AND OPERATION-Continued

Changed Conditions—Continued
4. Under a contract requiring inter alia, excavation in canyons in the

Rocky Mountain area of Western Colorado and installation of
steel siphon pipes and other structures for an irrigation canal
project, where the contract, the logs of borings and other Govern-
ment data provided only general information concerning sub-
surface conditions that might be encountered, and then only as to
areas outside of and not as deep as the required excavations
in most of the canyon areas, the Board found that such informa-
tion could not reasonably have been viewed as representations
respecting the quantities or percentages of cobbles and boulders
that would be encountered in such excavations in the considera-
tion of a first category changed conditions claim. Where excava-
tions were required for structures along the canal, the conditions
encountered did not differ significantly from those shown on the

applicable logs.--
5. Where a construction contractor assigned several employees to make a

pre-bid site investigation that extended over several days, and
those employees in a careful examination of the project area
would have seen that there were many basalt cobbles and boulders
at numerous points on or near the canal alignment, the contractor
must be charged with the duty of obtaining rudimentary knowl-
edge concerning the geologic origin of such cobbles and boulders
and how they came to be mixed in with nonbasaltic materials,
and about the proportions of cobbles and boulders that might be
encountered along the benches and in the canyons where work on
the canal was to proceed. The failure to secure information about
the origin of materials in certain of the canyons was held by the
Board not to be justified in the circumstances of the case; hence,
there was a failure of proof of second category changed conditions.
Except for a portion of one siphon site, “unanticipated" (second
category) changed conditions were found not to have been en-
countered on the project because the percentages of cobbles and
boulders were not shown to have been unusually high, or mate-
rially different from those ordinarily found in the area in work of
the kind required under the contract, and because most of the
appellant's difficulties arose from its own inefficient or unskilled

construction methods.-
6. Under a contract modification agreement for equitable adjustment

purporting to settle and release claims presented by the contractor
as additional expenses of coping with conditions encountered in
constructing foundations of a building, an appeal based on the
allegation that the contractor is entitled to additional compensa-
tion, for the reason that the conditions so encountered were
alleged to be changed conditions, will be dismissed, since the

Board has no authority to reform a contract.

Changes and Extras
1. Under a contract providing for estimated quantities and unit prices,

and stating that increases or decreases in such quantities are to
be paid for only at such unit prices, the contractor is entitled to

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106

CONTRACTS-Continued
CONSTRUCTION AND OPERATION—Continued
Changes and Extras–Continued

an equitable adjustment for additional quantities performed pur-
suant to a change order necessitating the duplication of supple-
mental work that had been completed previously and was not

contemplated by the unit prices----
2. Where in a motion for reconsideration the appellant questions the

Board's finding that a substantial portion of a claim for rock
excavation represents work performed below subgrade for which
the contract provides no basis for reimbursement but fails to show
that the contracting officer or the Government engineering per-
sonnel concerned were involved in any way in the appellant's deci-
sion to proceed with the subgrade excavation, the Board's earlier
decision that the work so performed was voluntary and not of the

character for which the Government is liable is affirmed--------
3. Under a tunnel construction contract that authorized the use of chan-

nel lagging between steel arches (to perform the necessary func-
tion of supporting the sides and roof of the tunnel), where a
change was ordered in the contractor's proposed conventional
method of attaching the channel steel lagging, which change
required the cutting of notches in the channels and reversing the
lagging so that the pieces of lagging were fitted (in part) between
the steel arches, resulting in a technical restriction of excava-
tion and concrete "pay" lines, the equitable adjustment con-
templated by the standard form of Changes Clause should not be
limited to the expense of cutting the notches but also should pro-
vide reasonable settlement for costs that the contractor had in-
cluded in its bid on the assumption that the conventional lagging
method and associated wider pay lines would be acceptable on the

project.
4. Under a contract for the construction of a road requiring the use

of a soft type of rock known as oolite, to be obtained from ad-
jacent borrow areas, and where no subsurface investigations
had been conducted by the Government to determine the avail-
ability of oolite in sufficient quantities, the contractor was entitled
to rely upon the representations in the contract with respect to
the presence of sufficient oolite materials. Upon excavation of
borrow pits designated by the Government when the contractor
encountered much harder rock that was difficult to excavate and
crush, and little if any oolite material, the condition so en-
countered was a changed condition of the first category within
the meaning of Clause 4 of Standard Form 23A. The direction
by the contracting officer that the hard rock be utilized for con-
structing the road was a constructive change and the contractor
is entitled to an equitable adjustment upon either theory, whether
a changed condition was encountered or a constructive change

was made-----
5. Directions by the contracting officer for the use of alternative con-

struction practices or procedures that were specifically provided
for in the contract did not constitute a constructive change. At the
time the work was performed the contractor accepted such prac-
tices or procedures without contending that excess costs would

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254

30.

CONTRACTS-Continued
CONSTRUCTION AND OPERATION-Continued
Changes and Extras–Continued

be involved. The Board concluded that this indicated that utili-
zation of the alternatives to meet conditions encountered on a
canal project more than fifteen miles in length over ridges,
benches, canyons and other varying features of the terrain was a
matter that had been expected by both parties, rather than work
of a different character than that required by the original terms

of the contract--
6. Under a contract for construction of a Visitor Center including a

Rotunda and office wing, containing a special clause for prece-
dence of work on the Rotunda over the work in other areas "if at
all possible,” but without otherwise requiring any order of
sequence of the work, where the work on the Rotunda was delayed
during investigation of foundation conditions in the Rotunda
area, and where in the meantime the contractor was directed
to proceed with work on the office wing but failed to do so until it
was able to commence work on the Rotunda, and after which time
the contractor worked concurrently in both areas, the actions of
the parties and the interpretation of the contract as a whole do
not support a claim for additional compensation based on an al-

leged change in the sequence of the contractor's operations.-

Drawings and Specifications
1. Under a contract for demolition of masonry, excavation, and build-

ing a structural shell at the base of the Statute of Liberty,
where the specifications contained a general requirement for
underpinning of existing structures adjoining new work, and
where the contractor, from a site inspection and pre-bid discus-
sions, was aware of the possibility that such underpinning would
be required to support the foundation of a perimeter wall, the
depth of which was not shown in the drawings and was not
known by the Government, the contractor's claim that upon exca-
vation it found that underpinning was necessary and that the
expense of underpining such wall should be paid as a changed
condition is denied for lack of proof that the wall's foundation

was unusually shallow or abnormally constructed-
2. A contractor is not entitled to an equitable adjustment under a claim

of extra work for installing concrete ballast pads on top of
underground tanks where the drawings clearly require such bal-
last pads to be included as part of the installation of the tanks,
and such ballast pads are not referred to in any other separate
pay item for concrete work, such as claimed by the contractor
with respect to thrust blocks, anchor blocks, bearing pads and out-

fall pads------
3. Where delays occur in the performance of the contractor's work pend-

ing decisions by the Government on questions concerning draw-
ings and specifications, due to alleged lack of Government super-
vision, or because of the actions of other contractors, an appeal
based on such claims will be dismissed as being outside the
Board's jurisdiction, in the absence of a contract provision of the
“pay for delay" type.

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287 973-68

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