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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