plans and specifications. The evidence shows that at the time the contract was awarded on Jan. 5, 1976, the contractor knew or was chargeable with the knowledge that to meet the requirements of the contract the trimmer employed would have to be capable of trimming the 8-foot bottom of the lateral (note 50, supra). If by reason of delay in accomplishing the necessary modifications to the trimmer or if because of delay in effecting the necessary repairs, or a combination of the two factors, the trimmer required for the work did not become operational until May 5, 1976, the delays in any event were caused by matters for which the contractor was responsible (Sunset Construction, Inc. and Jim Challinor, note 19, supra). The appellant has acknowledged that trimming had to precede the placement of the concrete lining (note 48, supra), and the president of the appellant corporation testified that in general the trimming operation went well well (note 52, supra). In these circumstances, the fact that the placement of the concrete lining did not commence until May 22, 1976, appears to be simply a corollary of the delay in starting the trimming operation. Commencing the concrete lining on that date, the contractor could not expect to complete that operation according to its own plan (AX-15) until June 21, 1976. This was some 10 days after the job was accepted as substantially complete by the Government on June 11, 1976.
While the appellant's witness Threlkeld has stated that on that date the concrete lining was only approximately 50 percent complete, we find the testimony of the Government witnesses King and Dunn. as detailed above, to be more persuasive. Accordingly, we find that the job was properly accepted as substantially complete on June 11, 1976.
There is no question but that the contractor continued to be involved in the placement of concrete for approximately another 6 weeks. According to the the Government witnesses this resulted from the contractor having to do a much greater amount of handlining than would have been required if he had followed the plan authorized by the specifications of placing the turnout structures in a manner so as to take maximum advantage of the use of machine concrete lining.
The evidence indicated that the contractor's decision to proceed in the manner he did may have been dictated by the difficulties experienced with the carpenters retained to build the forms for the outlet structures. We make no finding on this question, however, for assuming without deciding that the delays in completing at least some of
the forms for the outlet structures did not delay the overall performance of the contract, it is unquestionably true that the manner of installing the outlet structures was a choice the contractor made and the contractor rather than the Government must bear the consequences of that choice.
(Note-See front of this volume for tables)
ACCOUNTS
FEES AND COMMISSIONS
1. "Rural Electrification Administration projects." A right-of-way holder
is not excused from payment of rental under 43 CFR 2802.1-7(c),
by virtue of holding an REA loan, where such holder is neither a
cooperative or nonprofit organization.........
1. A check tendered prior to the due date of an oil and gas lease annual
rental payment, which is properly dishonored by the drawee bank,
does not constitute timely payment. But where return of the check
results from a confirmed bank error, subsequent collection and pay-
ment of the check relates back to the time of the original tender, and
payment is timely.. ___
2. Annual rental payments on oil and gas leases are sent to depositories
designated by the Secretary of the Treasury if their location permits
the deposit to be hand carried; otherwise, the deposits are mailed
to the Denver Branch of the Kansas City Federal Reserve Bank.
Washington, D.C., offices of the Bureau of Land Management may
send deposits to the Cash Division of the Treasury Department. All
checks drawn on foreign banks or foreign branches of United States
banks must be sent for deposit to the Cash Division of the Treasury
Department....
3. An oil and gas lease rental payment check returned to the Bureau of
Land Management because a Federal Reserve Bank will not accept
for collection checks drawn on foreign banks, but which could be
collected through the Cash Division of the Treasury Department and
would be honored by the drawee bank, is not "uncollectible".
4. Where a grantee seeks renewal of a right-of-way for a communication
site, the Bureau of Land Management should require an advance
annual payment at the rate formerly charged until a new fair market
value rate may be established by appraisal. In the absence of contrary
directives, the guideline in 43 CFR 2802.1-7(e) should be applied to
renewals of existing rights-of-way. Increased charges may not be
imposed retroactively, but are only imposed by the authorized officer,
after reasonable notice and opportunity for hearing, beginning with
the next charge year after the officer's decision................
5. Interest may be imposed on use charges for right-of-way sites depending
on considerations of fairness and equity. In the absence of contrary
directives, interest may be imposed for occupancy of a site where
use charges should have been imposed at the same rate as past per-
mitted use. Also, interest may be imposed on increased charges
due on an annual basis for the years prior to payment of such amount__
1. Unsurveyed fast lands, formed by accretion to public land or to lands
patented with an oil and gas reservation, riparian to a navigable river
and lying within the meander lines of that navigable river, as re-
corded on the official plat, may be leased provided that a proper offer
is received and the other relevant conditions precedent to leasing are
met..
2. Federal law determines the legal characterization of accretions, avulsions,
and relictions to land riparian to navigable bodies of water, where title
to the land or reserved interests in the land remains in the United
States.
1. "An Act granting public lands to the town of Silverton, Colorado, for
public park purposes" (43 Stat. 980, Feb. 25, 1925) ----
2. The above Act and the patent issued in accordance therewith require that
the lands granted be used for public park purposes only, and the
town's attempt to lease a portion of the lands for the construction of
camper sites does not violate the Act and patent since the use of a
limited part of the patented land for camper sites is consistent with
recreational and public park purposes-- --
(See also Federal Employees and Officers, Secretary of the Interior)
GENERALLY
1. Established and long-standing Departmental policy relating to the ad-
ministration of the simultaneous oil and gas leasing system is binding
on all employees of the Bureau of Land Management, until such time
as it is properly changed----
1. The Government is not estopped from collecting royalty payments which
are owed, even if it has accepted improper payments in the past______
ADMINISTRATIVE PRACTICE
1. Established and long-standing Departmental policy relating to the ad-
ministration of the simultaneous oil and gas leasing system is binding
on all employees of the Bureau of Land Management, until such time as
it is properly changed---
2. A final Departmental appellate decision construing a regulation will be
given immediate effect, and will not be applied with prospective effect
only, unless the decision alters materially the interpretation given the
regulation by earlier Departmental decisions or official published
opinions, and unless the equitable benefit of the decision is not out-
weighed by ill effects of allowing a benefit in derogation of the regula-
tion____
ADMINISTRATIVE PROCEDURE
(See also Appeals, Hearings, Rules of Practice)
ADMINISTRATIVE PROCEDURE ACT
1. A delay in taking action on an application for extension of a coal pros-
pecting permit while the Secretary formulates a new leasing policy
does not violate the Administrative Procedure Act, 5 U.S.C. §555(b)
(1976), nor does it constitute an abuse of discretion which would create
any rights not authorized by law. No hearing is required when the
facts of a case are not in dispute and the only issues are questions of
law..
2. Sec. 9(b) of the Administrative Procedure Act, as amended, 5 U.S.C.
§ 558(c) (1976), does not apply to coal prospecting permit extension
applications because the prospecting is not an “activity of a continuing
nature" within the meaning of the statute. As the Federal Coal Leasing
Amendments Act of 1975, 90 Stat. 1083, 30 U.S.C. §201 (West Supp.
1977), removed the Secretary of the Interior's discretion to grant
extensions, applications for preference-right leases filed after expiration
of the initial 2-year permit term, and during pendency of extension ap-
plications, cannot be issued....
1. A request for a hearing will be denied in the absence of an assertion of
fact which, if proved true, would entitle appellant to the relief sought..
2. A delay in taking action on an application for extension of a coal pros-
pecting permit while the Secretary formulates a new leasing policy
does not violate the Administrative Procedure Act, 5 U.S.C. §555(b)
(1976), nor does it constitute an abuse of discretion which would create
any rights not authorized by law. No hearing is required when the
the facts of a case are not in dispute and the only issues are questions
of law....
3. A request for a hearing will be denied when the facts are not in dispute and
the determination rests on questions of law.
1. Sec. 9(b) of the Administrative Procedure Act, as amended, 5 U.S.C. § 558(c)
(1976), does not apply to coal prospecting permit extension applications
because the prospecting is not an "activity of a continuing nature"
within the meaning of the statute. As the Federal Coal Leasing Amend-
ments Act of 1975, 90 Stat. 1083, 30 U.S.C. §201 (West Supp. 1977),
removed the Secretary of the Interior's discretion to grant exten-
sions, applications for preference-right leases filed after expira-
ration of the initial 2-year permit term, and during pendency of exten-
sion applications, cannot be issued___.
1. Where a contract between an oil and gas lease offeror and a leasing service
created an agency relationship, in the absence of circumstances giving
the agent an authority coupled with an interest, the agent's authority
ordinarily terminated upon the death of the principal. If the leasing
service had an interest, a lease could not issue to the estate of the
deceased if no statement was filed delineating the nature and extent
of that interest as required by 43 CFR 3102.7...
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