Moreover, in the Acting Project Superintendent's letter of October 13, 1955, to the appellant, it is stated: "Since you failed to properly prosecute your contract during the allotted 45 days, it now becomes your responsibility to prepare for such an eventuality (referring to a heavy snow storm) as having to wait until spring to complete your contract." This Board has held that failure of a contractor to prosecute work with efficiency and expedition does not, in and of itself, disentitle a contractor to extensions for such parts of ultimate delay as are excusable under the terms of a standard form construction contract.2
Accordingly, the motion to dismiss is denied.
The request of Department Counsel that he be permitted to file a statement of the Government's position on the merits is hereby granted (43 CFR 4.16). This statement must be filed within 30 days of the date of receipt of the Board's decision on the motion.
PAUL H. GANTT, Acting Chairman.
HERBERT J. SLAUGHTER, Member.
Board Member WILLIAM SEAGLE is absent on official duty.
the contracting officer of the error of which he complains it is not intended that the Government should take advantage of the 10-day limitation merely for the sake of applying the rule. Its true purpose is for protection against delays that are injurious to the Government's interest. If not injurious then, of course, there is no object in applying the rule."
A most recent case involving the invocation of the 10-day rule is Progressive Builders, Inc. v. District of Columbia, 258 F. 2d 431 (D.C. Cir.), cert. denied 358 U.S. 881 (1958). There the court quoted with approval the following statement from United States v. Cunningham, 125 F. 2d 28 (D.C. Cir., 1941): "Obviously, the intent of this provision is to inform the government of the cause of delay and afford an opportunity to remove it, and likewise to warn the government of the intention of the contractor to insist upon it as a means of prolonging the stipulated time for completion of the work."
2 Chas. I. Cunningham Co., 64 I. D. 449, 57-2 BCA par. 1541 (1957); Merz, IBCA-64, 59-1 BCA par. 2086 (1959).
Note.-See the front of this volume for tables
(See also Funds.)
REFUNDS
1. The authority of the Secretary to cancel an oil and gas lease is inde-
pendent of the right of the lessee to a refund and the Secretary need
not determine prior to or simultaneously with cancellation whether
the lessee is entitled to a refund of moneys paid to the United States
in connection with the lease___
2. A decision that a lease is to be canceled, standing by itself, is not a de-
termination one way or the other that repayment of moneys paid in
connection with the canceled lease is or is not to be made_.
3. The Secretary of the Interior need not return moneys paid in connec-
tion with an oil and gas lease as a condition to cancellation of the
lease
1. Where there has been no adjudication of commensurability of base
property during the priority period and the earliest commensurabil-
ity report in the official grazing files was not based on a dependent
property survey, the commensurability rating of the base during the
priority period will not be conclusively presumed to be that shown by
the earliest commensurability report if there is other evidence in the
record inconsistent with that report and the applicant whose grazing
privileges are affected thereby requests an opportunity to submit evi-
dence on the question----
2. After an appeal is taken to the Director from a decision of a land
office manager, jurisdiction over the case is in the former and the
latter has no authority to act upon it....
ADMINISTRATIVE PROCEDURE ACT
1. A decision declaring a mining claim null and void will be affirmed
where the decision is based on substantial evidence submitted at a
hearing held in accordance with the provisions of the Administrative
Procedure Act and presided at by an examiner qualified under the
act, and there was no error in the conduct of the proceeding or in the
decision invalidating the claim___
2. Applicants for lands selected under the soldiers' additional homestead
law are not entitled to a hearing under the Administrative Procedure
ADMINISTRATIVE PROCEDURE ACT-Continued
Act where the right of the applicant to select an additional entry is
recognized and the sole issue is whether the lands selected can be
properly classified as suitable for selection under the law----
HEARINGS
3. Applicants for lands selected under the soldiers' additional homestead
law are not entitled to a hearing under the Administrative Procedure
Act where the right of the applicant to select an additional entry is
recognized and the sole issue is whether the lands selected can be
properly classified as suitable for selection under the law_-.
HEARINGS EXAMINERS
4. A decision declaring a mining claim null and void will be affirmed
where the decision is based on substantial evidence submitted at a
hearing held in accordance with the provisions of the Administrative
Procedure Act and presided at by an examiner qualified under the
act, and there was no error in the conduct of the proceeding or in the
decision invalidating the claim__.
INDIAN AND NATIVE AFFAIRS
1. No payment is required of native occupants of Alaska native villages,
either by way of purchase money or fees, upon conveyances to them
by trustee of native village lands patented to trustee pursuant to
section 3 of the act of May 25, 1926 (48 U.S.C., sec. 355 (c)) --
2. Native village lands patented to trustee pursuant to section 3 of the
act of May 25, 1926 (48 U.S.C., sec. 355 (c)), cannot be disposed of by
competitive bidding.
3. Lands consisting of tidelands along the Alaska coast or of beds and
bottoms of navigable rivers or lakes in Alaska are not subject to
leasing under the Mineral Leasing Act__.
4. Where there is an approved corner of the public land survey within
two miles, an offer for a noncompetitive lease of unsurveyed lands
in Alaska which is not connected to that corner is defective and
earns the offeror no priority.
5. Lands consisting of tidelands along the Alaska coast or of beds and
bottoms of navigable rivers or lakes in Alaska are not subject to
leasing under the Mineral Leasing Act__
6. Upon the admission of Alaska into the Union, the authority granted
to the Secretary of the Interior by the act of July 3, 1958, to lease
lands beneath nontidal navigable waters terminated..
7. Section 6 of the act of July 3, 1958, gave a preference right to an oil
and gas lease to lands beneath nontidal navigable waters only to
those whose leases (or offers or applications) included public lands
otherwise available for leasing adjacent to such lands_
8. Oil and gas lease offers for unsurveyed unnamed islands in Alaska
are properly rejected where the description in the offers states only
that the islands are located between named unsurveyed islands,
OIL AND GAS LEASES-Continued
named bodies of water, and the shoreline, such a description being
too indefinite to identify the islands included in the offer; and oil
and gas lease offers for portions of unsurveyed named islands in
Alaska are properly rejected where the portion of the island desired
is described only by quantity of land and by stating the direction
of the land applied for from one outside boundary-.
9. Under the amendment to section 22 of the Mineral Leasing Act by the
act of July 3, 1958, payment of the first year's rental at the rate of
50 cents per acre is properly required with respect to offers for oil
and gas leases on lands in Alaska filed on or after May 3, 1958----
TIDELANDS
10. Lands consisting of tidelands along the Alaska coast or of beds
and bottoms of navigable rivers or lakes in Alaska are not subject
to leasing under the Mineral Leasing Act___
TOWNSITES
11. Reference to townsite provisions (sec. 2387 Rev. Stat. and act of
March 3, 1891, 26 Stat. 1095) in patent conveying native village lands
to trustee pursuant to section 3 of the act of May 25, 1926 (48 U.S.C.,
sec. 355 (c)), is pro forma and not intended to apply purchase money
or fee requirements to subsequent conveyances by trustee-----
1. Where successive applications for desert land entry on the same land
are filed and an entry is allowed on the first application but is sub-
sequently canceled because the entryman was not entitled to make
the entry, it is erroneous to reject the second application for entry on
the ground that the second applicant lost his rights under his appli-
cation upon the allowance of the first application; he loses such
rights only if the allowance of the entry on the first application
was proper_.
2. A drawing is properly set aside where it included simultaneously filed
offers for oil and gas leases some of which were and some of which
were not in conflict in whole or in part-----
3. A request for reinstatement of an offer for an oil and gas lease which
the offeror has withdrawn constitutes a new filing which must com-
ply with the requirements of the regulations, including the payment
of a filing fee, to earn the offeror priority__-
FILING
4. The regulation which provides that a document required to be filed
within a stated period, the last day of which falls on a nonbusiness
day, is timely filed if it is filed on the next business day the office is
open to the public, permits additional time for filing an application
for extension of a noncompetitive oil and gas lease when the expira-
tion of the primary term of the lease falls on a nonbusiness day, but
during that additional time, the land formerly covered by the lease
is not segregated solely because an application for extension may be
filed; if an application for extension is not timely filed, the land is
APPLICATIONS AND ENTRIES-Continued
available for new offers on the first day following the expiration date
of the primary term of the lease even though the expiration date
fell on a nonbusiness day.
PRIORITY
5. A regulation providing that, to determine the order in which simul-
taneously filed applications will be processed, all such applications
which conflict in whole or in part will be included in a drawing does
not authorize a drawing of simultaneously filed oil and gas lease
offers, some of which are and some of which are not in conflict in
whole or in part as to the lands described in the applications----
BUREAU OF RECLAMATION
CONSTRUCTION
1. The Bureau of Reclamation is not precluded by the Keating Amend-
ment provision in its annual appropriation acts from using available
funds to initiate construction of electric transmission lines in Iowa
as long as the area involved is not covered by an adequate wheeling
service contract___
1. A class 2 application to acquire a patent to public land under the
Color of Title Act is properly rejected where the application shows
on its face that the title under which the claim is filed did not com-
mence until after January 1, 1901, and that the state and local taxes
on the land were not paid continuously up to the date of the appli-
cation
CONTESTS AND PROTESTS
(See also Rules of Practice.)
1. One who does not bid at a lease offering can, as a protestant, call to
the Department's attention any irregularities in the handling of the
offering
2. A protest which alleges that mining claims have been located upon
land which has been surveyed at the request of a settler, does not,
without further proceedings, amount to a pending protest or contest
within the meaning of the proviso to section 7 of the act of March
3, 1891-
(See also Rules of Practice.)
GENERALLY
1. A decision declaring a high bid at a phosphate lease sale and stating
that a lease will be offered to the high bidder but not until the lands
are surveyed does not constitute an acceptance of the bid-----
2. Where a phosphate lease sale is held with a minimum expenditure
requirement as a condition of the sale and a bid is offered on that
basis and the manager purports to accept the bid free from the
minimum expenditure requirement, the purported acceptance is not
an acceptance but a counter offer which does not result in a con-
tract
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