unusual weather conditions from usual weather conditions at the work site, specifically in view of the proximity of the weather station to the construction site. A report for 70 weeks (July 21-November 21, 1959), was prepared without specifying a source, by appellant, and offered in evidence. This evidence fails, however, to establish that rain and snow periods indicated thereon were unforeseeable, or unusually severe, as required by the "*** Damages for Delay-Time Extensions" provision (Clause 5), in order to entitle appellant to further excusable time for performance.9 From the available evidence, the Board finds that appellant is not entitled to a further extension of time for performance, attributable to unforeseen and unusually severe weather, and considers the contracting officer's determinations of excusability, a commensurate allowance for weather conditions encountered by appellant during performance of subject contract. Appellant's contention that it is entitled to an excusable delay due to Government interference with its plan to begin excavating for the construction of the bridge at the 1G4 Project, is untenable, and must be denied, since the Government engineer insisted only that the preliminary work on the detour road be accomplished prior to bridge construction, which was required by the contract terms. We find no merit in appellant's claim for delay in performance allegedly caused by the Government's failure to "stake out" Project 1G4, since the evidence establishes that this bridge was staked out on October 13, 1958, yet excavating for the same by appellant did not begin until November 10, 1958. We find no error in the contracting officer's findings, as corrected at the oral hearing, that there was an unexcusable delay of 71 days in performance of this contract.10 Accordingly, appellant's appeal therefrom is denied in its entirety. Contract No. 14-10-0100-987 Projects 3E3, 3E4, and 3E5 This unit price construction contract in the amount of $173,147.25 was awarded appellant on June 27, 1958. It called for the construction of (1) a 3-span concrete slab bridge, (2) a 3-span concrete girder overpass, (3) a single span concrete rigid frame overpass, approaches thereto, and other allied work in the State of Mississippi. Work was to begin within 10 days and be completed within 300 calendar days following receipt of notice to proceed. The official time 8 Triangle Construction Company, 69 I.D. 7, 62–1 BCA par. 3317. 10 Time computation was as follows: Performance July 12, 1958, to July 8, 1960-728 days. Excusable delay of 285 days, plus 22 days for increased quantities, plus 350 days for performance by terms of contract, equals 657 days. 728 minus 657-71 days. June 5, 1962 for performance began on July 28, 1958. The contract was not completed until November 30, 1959, or 490 days subsequent to July 28, 1958, which constituted an alleged unexcusable delay of 53 days, and resulted in the Government's assessment of liquidated damages for this period at the rate of $100 per day for a total sum of $5,300. It is appellant's contention that there should be no Government assessment of liquidated damages, since all delays in performance are excusable, pursuant to Clause 5 (c) of Standard Form 23A, "Termination for Default-Damages for Delay-Time Extension" provision, supra, which states that the contractor shall not be charged with liquidated damages because of any delays in completion of the work attributable to unforeseeable causes which includes unusually severe weather. Other allegations of excusable delay attributable to Government interference with performance will not be discussed, in view of our determination herein, that there should be no assessment of liquidated damages for failure to perform within the time required. The evidence discloses that the District Engineer directed the suspension of all work due to rain and wet grounds, except for one period of 5 days, from December 10 to December 16, 1958 (which was attributable to snow), pursuant to the Suspension of Work clause (Article 8.7 of FP-57 Specifications), as enumerated below: In his findings of March 7, 1961, the contracting officer extended the time for performance from October 6 to October 15, 1959, or for a period of 10 days, due to wet soil conditions which did not permit seeding and sodding operations. By Directive S, dated October 12, 1959, the seeding and sodding period was extended from October 16 to October 31, 1959, and by amendment thereto on November 23, 1959, this period was further extended from October 31 to November 30, 1959, for a total extension of 45 days.1 11 11 "1. Article 591-3.4, Seeding, as prescribed on page D-5 of the proposal and contract, is hereby modified to extend the fall seeding period from October 16 to October 31, 1959. "2. Article 594-3.4, Placing Sod, as prescribed on page D-7 of the proposal and con 647059-62-2 This contract was completed on November 30, 1959. In his findings of fact and decision of March 7, 1961, the contracting officer did not, however, extend the time for performance from October 16 to November 30, 1959, in accordance with Directive S, dated October 12, 1959, and the amendment thereto, issued on November 23, 1959. Although the contracting officer determined that there was an unexcusable delay of 53 days in performance, which resulted in the assessment of $5,300 as liquidated damages for this period, this assessment must fail, since Directive S and the amendment thereto, unquestionably extended the time for performance to November 30, 1959, which was the date of completion of performance. Accordingly, the appeal from the contracting officer's decision pertaining to Contract No. 14-10-0100-987 is granted pursuant to the Termination for Default-Damages for Delay-Time Extensions provision (Clause 5 (c)) of the contract. The Government's assessment of $5,300 as liquidated damages must perforce be remitted. Summary The appeal from the contracting officer's decision, pertaining to Contract No. 14-10-0100–966, wherein appellant was assessed the sum of $7,100 as liquidated damages for failure to perform within the contract time as extended, is denied. The appeal from the contracting officer's decision, pertaining to Contract No. 14-10-0100-987 is granted. The assessment of $5,300 as liquidated damages is accordingly remitted. We concur: PAUL H. GANTT, Chairman. THOMAS M. DURSTON, Member. JOHN J. HYNES, Member. tract, is hereby modified to extend the fall sodding period from October 16 to October 31, 1959. "We have been advised by the Resident Engineer that all work will have been completed on or about October 31, 1959. "Please indicate your agreement to this directive by dating, signing, and returning the two enclosed copies by return mail. "(sgd) W. B. COMPTON, Jr., W. B. Compton, Jr., for C. H. Buchanan, Division Engineer. "Accepted 10/13/59. Brooks & Mixon Contractors By: (sgd) E. F. MIXON" "AMENDMENT A TO DIRECTIVE S "Directive S, dated October 12, 1959, issued in connection with your contract for the construction of Project 3E3,4,5, Natchez Trace Parkway, is hereby amended to extend the fall seeding and sodding period from October 31, 1959, to November 30, 1959. "Please indicate your agreement by dating, signing, and returning by return mail the two enclosed copies. The original is for your files. "Accepted 11/24/59. Brooks & Mixon Contractors By: (sgd) E. F. MIXON" "(sgd) C. H. BUCHANAN, C. H. Buchanan, A-29020 OTIS A. ROBERTS Decided June 12, 1962 Oil and Gas Leases: Generally-Water and Water Rights: Generally Where a determination has been made under section 40 of the Mineral Leasing Act that water struck while drilling for oil under an oil and gas lease is not presently valuable and usable at a reasonable cost and where additional information is submitted tending to show otherwise, the case will be remanded for a reconsideration of the determination. Oil and Gas Leases: Generally-Water and Water Rights: Generally When water struck while drilling for oil under an oil and gas lease issued pursuant to the Mineral Leasing Act is determined to be valuable and usable at a reasonable cost for agricultural, domestic, or other purposes, the land on which the well is located will be reserved as a water hole and the well operated or leased to accomplish the purposes of section 40 of the Mineral Leasing Act. Oil and Gas Leases: Generally-Water and Water Rights: Generally When water struck while drilling for oil under an oil and gas lease issued pursuant to the Mineral Leasing Act is determined not to be valuable and usable at a reasonable cost for agricultural, domestic, or other purposes, the well is to be plugged and abandoned by the oil and gas lessee. Rights-of-Way: Act of March 3, 1891-Rights-of-Way: Act of February 15, 1901 An application for a right-of-way for a well site and pipeline is properly rejected for the development of water discovered in drilling for oil and gas under an oil and gas lease issued under the Mineral Leasing Act. APPEAL FROM THE BUREAU OF LAND MANAGEMENT Otis A. Roberts has appealed to the Secretary of the Interior from a decision by the Appeals Officer, Bureau of Land Management, dated May 5, 1961, which affirmed a decision dated January 10, 1961, by the Colorado land office, rejecting Roberts' application under the acts of March 3, 1891, as amended (43 U.S.C., 1958 ed., sec. 946 et seq.), and February 15, 1901 (43 U.S.C., 1958 ed., sec. 959), for a rightof-way for a well site and a pipeline for the transmission of water upon and across Lot 10, Sec. 3, T. 2 S., R. 84 W., 6th P. M., Colorado. The application was filed on February 19, 1960, at a time when Roberts had Lot 10 under oil and gas lease pursuant to the Mineral Leasing Act (30 U.S.C., 1958 ed., sec. 181 et seq.). The map accompanying the application shows that the proposed pipeline would run from the well site to the Colorado River, which runs along the southwestern portion of the lot. The application recited that water was struck while the land was being drilled for oil, that the well was completed as a flowing artesian water well, that the oil and gas lease (Denver 054284) would expire on February 29, 1960, that the applicant was in the process of giving notice to the Geological Survey that he intended to test the well further and condition the same for the production of water, and that the well site and pipeline would be utilized for the production and transmission of artesian well water for irrigation, domestic, and industrial purposes. No particulars were given as to which lands might be irrigated through the use of the water or as to the nature of any industrial purposes which might be served by the water. Roberts was notified on March 24, 1960, that since the water was encountered on public land in the course of drilling for oil or gas, a determination would have to be made under section 40 of the Mineral Leasing Act, as added by the act of June 16, 1934 (30 U.S.C., 1958 ed., sec. 229a), as to whether the water supply available had economic value. The record indicates that Roberts failed to answer an inquiry from the local office of the Geological Survey of May 25, 1960, as to the pertinent factors bearing upon a determination as to whether the water was valuable and usable at a reasonable cost for agricultural, domestic, or other purposes. The Regional Oil and Gas Supervisor of the Geological Survey determined, on the basis of a report from the Bureau of Land Management, that there was insufficient arable land for irrigation by the well and that the water was not needed for domestic use. He also stated that the proposed industrial use for the water might not materialize for five to ten years "and perhaps never." Accordingly, he determined that the water was not presently valuable or usable at a reasonable cost. Thereafter, by the decision of January 10, 1961, Roberts was informed that the well would not be conditioned for water production or the land reserved as a water hole. As the water from the well would not be available to Roberts, his application for the right-of-way was denied.1 Roberts appealed to the Director of the Bureau of Land Management on the ground that since the Geological Survey had determined that the well would not be conditioned as a water well the Department had no choice but to allow his application for the right-of-way. Roberts also stated that he had, on March 1, 1961 (approximately one year after his oil and gas lease had expired), filed an application with the State of Colorado and obtained a permit to use ground water. The Director affirmed the decision of January 10, 1961, on the ground that it was proper to refuse to grant a right-of-way where no useful purpose would be served. In this appeal to the Secretary the appellant has submitted information which suggests that the water from the well may be presently valuable and usable at a reasonable cost for certain purposes. He has submitted a letter to the Secretary of the Interior from the 1 So far as the record now before me shows, the well has not yet been plugged. |