Mr. Riggle stated that on February 9, 1959, he attempted to drive to the job site but was prevented from reaching it by snow drifts on the roads and on the canal banks.2 Mr. Riggle testified that on February 10th, 11th, and 12th, he talked over the telephone with Mr. Byron Boston, Assistant Field Engineer of the Bureau of Reclamation at Quincy, who suggested on each occasion that further efforts to get to the job be postponed for a few days because of the weather, there being about six inches of snow on the level and fourfoot drifts blocking the roads."

On February 16, 1959 (the date suggested by Mr. Boston), appelant's concrete foreman tried to go to the job site with a pickup truck and "couldn't make it" because of a snow drift, according to Mr. Riggle.*

Mr. Boston, Mr. Riggle and several other men were unable to get to the job the following day, February 17, 1959, but on February 25th, Mr. Boston, Mr. Riggle and a Mr. Bietzeke, in a 4-wheel-drive Jeep, were able to arrive at one end of the 3-foot lateral W44C-7, but proceeded only to a point about 4,000 feet from the end of the 8-foot lateral W44C because it would have been necessary to wade through deep snow to reach that lateral.

Also on that date, these persons tried again to drive to the proposed gravel pit, but couldn't get off the country road where they were to turn into the approach to the gravel pit.5

On all of these occasions the ground was frozen to a depth of about twelve inches. This was a critical factor in appellant's operations. In order to perform the contract, it was necessary to excavate about 6-8 inches of earth from the existing ditches before placing the gravel base for the concrete lining. The 12-inch layer of frozen earth could not feasibly be removed except to its full depth. This would have required excessive back fill and was not economical, according to Mr. Riggle. Also, it was not feasible to pour concrete unless the air temperature was at least 35 degrees. The average daily temperature at Quincy did not exceed 30 degrees at any time from February 1 to February 22, 1959, according to the official weather bureau records. The average was 31 degrees on February 23; 35 degrees on February 25; and it went up to 46 degrees on February 28. The temperature dropped back to 34 degrees average on March 1, but climbed again to 51 degrees on March 6, 1959.

It is conceded by appellant that work could have been commenced on March 7, 1959. However, due to the refusal to proceed, on the

2 Tr. 14.

8 Tr. 15, 16, 17.

4 Tr. 17.

5 Tr. 18, 19.

• Tr. 24.

March 14, 1962

part of a subcontractor whom the contractor-appellant expected to to perform the initial stages, the work did not actually begin until March 15, 1959. The Government's witness Byron Boston testified that, in his opinion, work could have been started about March 1, 1959.7

It appears from the official weather reports that a somewhat unusual situation existed in January and February 1959. There were only about three inches of snow on the ground in the latter part of January and this condition permitted the soil to freeze to a greater depth than would have been the case with the protection of a thick, insulating snow cover. Then, beginning the 9th of February 1959, several successive storms deposited a total of ten inches of snow and most of it remained on the ground until the end of February, with a maximum depth of thirteen inches, including previous accretions. The result was that this heavy snow cover prevented the frozen ground from thawing until practically all of the snow had melted. A similar pattern of snowfall and soil freezing does not appear to have occurred in the previous ten years, as to January and February, except for the year 1949. Otherwise, in every year, more snow fell in January than in February, as we see from the tabulation below. Also, more snow fell in February 1959 than in any February for the previous ten years.

Inches of Snowfall at Ephrata

9

Cf. Refer Construction Company, IBCA-267 (February 28, 1962).

Moreover, the average temperatures for January and February over the previous ten years show a peculiar dissimilarity when compared with the months of January and February 1959. For the last 15 days of each January in the years 1949-1958, the average temperature fluctuated between about 17 degrees and 23 degrees, and in February over the same ten years, the average temperature rose in a steady trend from a low of 18 degrees on February 1 to about 40 degrees at the end of February.

In contrast with the previous ten-year averages, the temperatures at Quincy (a weather station nearer to the work site than is Ephrata), for the last 16 days of January 1959 fluctuated between 22 degrees and 41 degrees, being 10 to 15 degrees warmer than the ten-year average on all but 3 days. This was apparently not mild enough to thaw the frozen ground. This contrast was reversed beginning February 6, 1959. Thereafter, until about the first of March, the 1959 average daily temperatures were from 2 to 7 degrees colder than the ten-year average for that period, except for one day when they were both 30 degrees. 10

Under the circumstances the Board finds that the weather for February 1959 in the vicinity of the work site was unusually severe, and that such weather was not foreseeable. It was maintained by Mr. Boston, the Government engineer, that the work could have commenced about March 1, 1959. Appellent contends that due to the severe weather it could not have commenced work until March 7, 1959. Even if this is true, it should be anticipated from the natural vagaries of the weather in that locality and season that a few days of work would be lost in any event." At least it is probable that appellant's equipment could have been moved to the site about March 1 while the ground was still frozen sufficiently to support it during its transport. Hauling was restricted on March 7, 1959, because "the roads were very soft." 12 Accordingly, pursuant to Clause 5(c) of the contract, entitled Termination for Default-Damages for Delay-Time Extensions, the time specified in the contract for the performance thereof is hereby extended by 21 calendar days from March 28, 1959, to April 18, 1959. Hence, the appellant is chargeable with a delay of 18 calendar days from April 18, 1959, to May 6, 1959, the date of actual completion.

10 Government's Exhibit B.

"To

11 Cf. Caribbean Engineering Company v. United States, 97 Ct. Cl. 195, 229 (1942). be entitled to an extension on account of bad weather, the bad weather must have been in fact unforeseeable. Any prudent man would have anticipated that he would have been delayed at least two days by bad weather, if not more." See also 14 Comp. Gen. 431, 433 (1934).

12 Riggle, Tr. 24.

March 15, 1962

CONCLUSION

The appeal is sustained to the extent indicated in the foregoing opinion. It is denied as to the remainder of appellant's claim of

excusable delay.

Rules of Practice: Appeals: Generally

Where a party to an appeal has previously requested reconsideration of a decision and the Board has issued a decision upon such reconsideration, the Board is without authority to entertain a request by that party for a further reconsideration.

Rules of Practice: Appeals: Generally

Where a request for reconsideration of a decision of the Board is not persuasive of error by the Board, the decision will be affirmed.

BOARD OF CONTRACT APPEALS

The Government has, for the second time, requested reconsideration of the decision of the Board in this appeal. Following the first request of the Government for reconsideration, concerning the original decision,1 the Board modified its holding as to the amount of increased wages of the electrician employees which should be treated as qualified for escalation under the contract terms, by reducing that amount from $1.10 per hour to $.80 per hour.2

The Government now requests reconsideration of the modified decision of November 9, 1961, on the ground that the modification in and of itself constitutes an "initial" decision which was not urged by either party, and as to which the Government is entitled to reconsideration for the first time.

Appellant has also requested reconsideration of the modified decision on the ground that the original decision should not have been modified in any respect. Since this is the first request for reconsider

1 IBCA-240 (January 4, 1961), 68 I.D. 1, 61–2 BCA par. 3193, 3 Gov. Contr. par 83. 2 IBCA-240 (November 9, 1961), 68 I.D. 363, 61-2 BCA par. 3194, 4 Gov. Contr. par. 19.

ation by appellant, it is perhaps in a better position to argue for a further reconsideration. However, we do not consider it necessary to dwell on this point. Reconsideration is denied as to appellant for the reason that the fullest consideration has already been accorded to appellant's claims. Nothing is now presented which was not before the Board at the times of the original decision and the first reconsideration.3

4

Reconsideration on behalf of the Government is likewise denied for the reason that the Board is without authority under section 4.15 of the Board's rules to entertain a second request for reconsideration. The Carson case, footnote 1, supra, is also dispositive of this question. However, even if it were not for this procedural bar to the Government's request, the Board would be constrained to refuse to modify further its existing decision on the merits of the arguments advanced. The Government has not cited any precedent or authority for its novel theory, that a modified decision amounts to an initial decision, and the Board has been unable to find any basis for such a proposition. Additional proceedings for reconsideration could be repeated ad infinitum on every successive occasion of modification of a decision, if this concept should be adopted.

One argument is that on the first reconsideration the Board erred in partially reducing the amount of the electrician's wage increase eligible for escalation, for the reason that neither the Government nor the appellant had asked for a "middle ground" type of decision. Therefore, the Government now insists on an "all or none" verdict. This was not, apparently, the Government's position when Department Counsel, in his brief on the first reconsideration, cited with seeming approval the decision of the Comptroller General which obligated the contracting officer (and, of course, the Board) to "determine what part, if any, of the *** $1.10 per hour paid the electricians above locally prevailing base wage rates constitute elements excluded from escalation ***" (Italics supplied.) Obviously, the Board did not err. The Board's authority, to arrive at decisions which may involve holdings as to values somewhere between the disparate claims of the adversaries before it, is, of course, inherent.

The allegation in Department Counsel's second Motion for Reconsideration to the effect that the Board's holding in the first reconsideration is not supported by substantial evidence is too vague for

3 Carson Construction Company, IBCA-21, 25, 28, 34 (May 20, 1959), 66 I.D. 177. 443 CFR 4.15.