B-122111, OCT. 4, 1955

B-122111: Oct 4, 1955

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ESQUIRES: REFERENCE IS MADE TO YOUR LETTER OF JULY 2. THE CLAIM IS IN THE AMOUNT OF $14. 212.39 AND REPRESENTS THE DIFFERENCE BETWEEN THE MARKET PRICE PER POUND (11 1/4 CENTS) AND THE FLOOR PRICE PER POUND (17 1/2 CENTS) STIPULATED IN THE CONTRACT FOR THE METALLIC ZINC RESULTING FROM ORE WHICH WAS MINED AT THE MULCAHY MINE DURING THE MONTH OF DECEMBER 1954. GS-00P/D/-12019 WAS ISSUED AND ACCEPTED BY THE CONTRACTOR WITH THE ADVICE THAT IT CONSTITUTED A CONTRACT ON THE TERMS SET FORTH THEREIN AND SIGNIFIED AN INTENTION OF THE GENERAL SERVICES ADMINISTRATION TO EXECUTE A FORMAL CONTRACT WITH THE VINEGAR HILL ZINC COMPANY FOR THE PURCHASE OF 5. IT WAS STIPULATED THAT THE CONTRACTOR WOULD. IT WAS FURTHER PROVIDED THAT IN THE EVENT FORCE MAJEURE CONDITIONS EXTENDED OR SUSPENDED PRODUCTION THE CONTRACT PERIOD WOULD BE EXTENDED ACCORDINGLY.

B-122111, OCT. 4, 1955

TO KOPP AND MCKICHAN, ESQUIRES:

REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1955, AND PREVIOUS CORRESPONDENCE RELATING TO THE CLAIM OF VINEGAR HILL ZINC COMPANY ARISING OUT OF CONTRACT NO. GS-OOP/D/-12019, ENTERED INTO WITH THE GENERAL SERVICES ADMINISTRATION. THE CLAIM IS IN THE AMOUNT OF $14,212.39 AND REPRESENTS THE DIFFERENCE BETWEEN THE MARKET PRICE PER POUND (11 1/4 CENTS) AND THE FLOOR PRICE PER POUND (17 1/2 CENTS) STIPULATED IN THE CONTRACT FOR THE METALLIC ZINC RESULTING FROM ORE WHICH WAS MINED AT THE MULCAHY MINE DURING THE MONTH OF DECEMBER 1954.

UNDER DATE OF JUNE 30, 1951, LETTER OF INTENT NO. GS-00P/D/-12019 WAS ISSUED AND ACCEPTED BY THE CONTRACTOR WITH THE ADVICE THAT IT CONSTITUTED A CONTRACT ON THE TERMS SET FORTH THEREIN AND SIGNIFIED AN INTENTION OF THE GENERAL SERVICES ADMINISTRATION TO EXECUTE A FORMAL CONTRACT WITH THE VINEGAR HILL ZINC COMPANY FOR THE PURCHASE OF 5,000 SHORT TONS OF SLAB ZINC. IT WAS STIPULATED THAT THE CONTRACTOR WOULD, WITHIN ONE YEAR FROM THE DATE OF THE LETTER OF INTENT, COMPLETE CONSTRUCTION OF ADDITIONAL FACILITIES FOR MINING ZINC AT ITS LEAD DEPOSIT KNOWN AS THE MULCAHY PROPERTY AND THAT THE CONTRACT WOULD BE IN FORCE FOR A PERIOD OF THREE YEARS FROM DATE OF THE ORDER. IT WAS FURTHER PROVIDED THAT IN THE EVENT FORCE MAJEURE CONDITIONS EXTENDED OR SUSPENDED PRODUCTION THE CONTRACT PERIOD WOULD BE EXTENDED ACCORDINGLY, WITH AN OVERALL TIME LIMIT OF AUGUST 31, 1955.

ON OCTOBER 2, 1952, WHILE THE DEFINITIVE CONTRACT WAS BEING NEGOTIATED, YOU ADDRESSED A LETTER TO THE DIRECTOR, CONTRACT NEGOTIATIONS DIVISION, DEFENSE MATERIALS PROCUREMENT AGENCY, REGARDING CERTAIN CHANGES TO BE EFFECTED IN THE PROPOSED CONTRACT AND REQUESTED UNDER THE FORCE MAJEURE PROVISION OF THE LETTER OF INTENT AN EXTENSION OF THE PERIOD OF PRODUCTION BY REASON OF DIFFICULTIES WHICH HAD BEEN ENCOUNTERED IN THE SINKING OF THE MINE SHAFT. BY LETTER OF OCTOBER 22, 1952, YOU WERE ADVISED BY THAT OFFICIAL THAT THERE WAS NO OBJECTION TO MAKING AN ADMINISTRATIVE FINDING THAT THE REQUEST BE GRANTED,"EVEN THOUGH AS A PURELY LEGAL MATTER, IT IS QUESTIONABLE AS TO WHETHER SUCH GRANTING OF FORCE MAJEURE IS OBLIGATORY.' THUS, IT BECAME THE UNDERSTANDING OF THE PARTIES THAT THE THREE-YEAR PRODUCTION PERIOD WOULD BE EXTENDED TO SEPTEMBER 30, 1954.

ON DECEMBER 15, 1952, DEFINITIVE CONTRACT NO. GS-OOP/D/-12019 WAS EXECUTED WHICH SPECIFICALLY PROVIDES IN ARTICLE XXIV THAT "THIS CONTRACT SUPERSEDES AND REPLACES, FOR ALL INTENTS AND PURPOSES, THE LETTER CONTRACT ACCEPTED ON JUNE 30, 1951.' REGARDING FORCE MAJEURE CONDITIONS, AND CONTRACT PROVIDES:

"IF THE PERFORMANCE OF ANY PART OF THIS CONTRACT BY EITHER THE CONTRACTOR OR THE GOVERNMENT IS PREVENTED, HINDERED OR DELAYED BY REASON OF ANY CAUSE OR CAUSES BEYOND THE RESPECTIVE CONTROL OF THE CONTRACTOR OR THE GOVERNMENT, AND WHICH CANNOT BE OVERCOME BY DUE DILIGENCE, THEN THE CONTRACTOR OR THE GOVERNMENT, AS THE CASE MAY BE, SHALL BE EXCUSED FROM SUCH PERFORMANCE DURING THE CONTINUANCE OF ANY SUCH HAPPENINGS OR EVENTS. TO BECOME OPERATIVE, THE CONTRACTOR OR GOVERNMENT, AS THE CASE MAY BE, SHALL GIVE TO THE OTHER, WITHIN TEN (10) DAYS AFTER THE OCCURRENCE OF SUCH HAPPENINGS OR EVENTS, WRITTEN NOTICE THEREOF, TOGETHER WITH A STATEMENT SETTING FORTH THE FACTS IN EVIDENCE, AND, UPON CONCLUSION OF SUCH HAPPENINGS OR EVENTS, SHALL NOTIFY THE OTHER IN WRITING OF SUCH TERMINATION WITHIN TEN (10) DAYS.'

ON APRIL 22, 1954, THE CONTRACTOR MADE A GENERAL APPLICATION FOR AN EXTENSION OF ONE YEAR OF THE TIME LIMIT WITHIN WHICH TO PRODUCE THE SPECIFIED TONNAGE OF SLAB ZINC. CONSIDERABLE CORRESPONDENCE FOLLOWED AND ON OCTOBER 6, 1954, THE COMMISSIONER, EMERGENCY PROCUREMENT SERVICE, GENERAL SERVICES ADMINISTRATION, ADVISED THE CONTRACTOR THAT, IN RESPONSE TO A REQUEST OF THE OFFICE OF DEFENSE MOBILIZATION, THE CONTRACT PERIOD OF PRODUCTION HAD BEEN EXTENDED FROM SEPTEMBER 30, TO OCTOBER 30, 1954, TO PERMIT SUBMISSION BY THE CONTRACTOR OF A REPORT ON THE ALLEGED FORCE MAJEURE CLAIM. THE CONTRACTOR WAS FURTHER ADVISED IN THE LETTER THAT THE GRANTING OF THE EXTENSION WAS SUBJECT TO CERTAIN SPECIFIED CONDITIONS.

UNDER DATE OF OCTOBER 11, 1954, YOU SUBMITTED THE REQUIRED REPORT CONCERNING THE ALLEGED FORCE MAJEURE CONDITIONS AND REQUESTED A TWO MONTH EXTENSION OF THE CONTRACT UP TO DECEMBER 31, 1954. IN A LETTER DATED OCTOBER 10, 1954, THE REQUEST WAS DENIED BY THE COMMISSIONER, EMERGENCY PROCUREMENT SERVICE, WHO STATED THAT THE CLAIMED FORCE MAJEURE CONDITIONS CONSTITUTED NORMAL BUSINESS RISKS AND WERE NOT OF A NATURE OF CAUSE CONTEMPLATED BY ARTICLE XIX OF THE CONTRACT. THIS DETERMINATION WAS MADE THE SUBJECT OF AN APPEAL BY YOU AND A HEARING BEFORE THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION, WAS HELD ON OCTOBER 28, 1954.

THE BOARD OF REVIEW FOUND THAT THE DIFFICULTIES WHICH WERE ENCOUNTERED IN (A) THE SINKING OF THE SHAFT, (B) THE MINING METHODS EMPLOYED, AND (C) THE QUALITY OF THE ORE ENCOUNTERED WERE ALL FORCE MAJEURE CONDITIONS WITHIN THE CONTEMPLATION OF THE TERMS OF THE CONTRACT, REGARDING THE DELAYS ALLEGED TO HAVE BEEN INCURRED BECAUSE OF THE DIFFICULTIES REGARDING MINING METHODS AND THE GRADE OF ORE, THE BOARD OF REVIEW CONCLUDED THAT, SINCE THE DEFINITIVE CONTRACT SUPERSEDED THE LETTER OF INTENT AND THE REQUEST FOR EXTENSION WAS NOT MADE UNTIL OCTOBER 11, 1954, THERE WAS NO LEGAL BASIS FOR EXTENDING THE TIME FOR PRODUCTION BECAUSE OF THE CONTRACTOR'S FAILURE TO NOTIFY THE GOVERNMENT IN WRITING WITHIN TEN DAYS AFTER THE OCCURRENCE OF THE HAPPENINGS OR EVENTS AS REQUIRED BY THE CONTRACT. AS TO THE DIFFICULTIES IN SINKING THE MINE SHAFT, THE REQUEST FOR EXTENSION WAS CONSIDERED IN OCTOBER 1952. AT THAT TIME, THE FORCE MAJEURE CONDITIONS OF THE LETTER OF INTENT WERE IN EFFECT AND NO NOTICE WAS REQUIRED. THE BOARD OF REVIEW HELD THAT, SINCE THE CONTRACTOR HAD BEEN GRANTED A THREE-MONTH EXTENSION UNDER THE LETTER OF INTENT, AS SPECIFICALLY REQUESTED, AND SINCE THE REQUEST FOR ADDITIONAL TIME WAS NOT MADE UNTIL OCTOBER 1954 UNDER THE DEFINITIVE CONTRACT, THE OPPORTUNITY FOR GRANTING AN EXTENSION HAD LAPSED BECAUSE OF THE CONTRACTOR'S FAILURE TO OBSERVE THE 10-DAY NOTICE REQUIREMENT.

IN REACHING ITS DETERMINATION IN THE CASE, THE BOARD OF REVIEW RECOMMENDED THAT, IN ORDER TO GIVE FULL CONSIDERATION TO THE APPEAL, THE CONTRACT BE EXTENDED UNDER ITS TERMS ANOTHER MONTH, OR UNTIL NOVEMBER 30, 1954. THIS AND THE OTHER RECOMMENDATIONS OF THE BOARD WERE APPROVED BY THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, ON NOVEMBER 10, 1954. THE QUESTION NOW PRESENTED IS WHETHER THE CONTRACTOR IS ENTITLED TO DAMAGES REPRESENTING THE DIFFERENCE BETWEEN THE MARKET PRICE AND THE PRICE THE GOVERNMENT WOULD HAVE PAID DURING DECEMBER 1954 HAD THE CONTRACT BEEN EXTENDED AS REQUESTED. IN YOUR SUPPORTING BRIEF WHICH WAS SUBMITTED ON JULY 2, 1955, YOU CONCLUDE THAT THE CLAIM SHOULD BE ALLOWED FOR THE FOLLOWING REASONS:

"1. THE "FORCE MAJEURE CONDITIONS" AROSE DURING THE PERIOD WHEN THE "LETTER OF INTENT" CONTRACT WAS IN FORCE. THIS REQUIRED NO NOTICE. THE CONTRACT WAS THEREUNDER EXTENDED AUTOMATICALLY FOR THE PERIOD OF DELAY RESULTING FROM SUCH FORCE MAJEURE CONDITIONS.

"2. IF NOTICE WAS REQUIRED THE GENERAL SERVICES ADMINISTRATION WAIVED SAME BY DECIDING THE REQUEST OF THE CONTRACTOR FOR AN EXTENSION ON THE MERITS, WITHOUT ANY REFERENCE TO THE MATTER OF NOTICE, AND BY AGREEING TO SEVERAL EARLIER EXTENSIONS WITHOUT ASSERTING THE DEFENSE OF LACK OF NOTICE.

"3. IF NOTICE WAS REQUIRED, THE NOTICE GIVEN WAS TIMELY BECAUSE THE "FORCE MAJEURE CONDITIONS" INVOLVED DID NOT LEND THEMSELVES TO THE USUAL TYPE NOTICE AND IT WAS ONLY NEAR THE END OF THE TERM AND WHEN IT BECAME EVIDENT THAT THE CUMULATIVE EFFECT OF THESE CONDITIONS WOULD DELAY DELIVERIES UNDER THE CONTRACT THAT NOTICE WAS REQUIRED. THE NOTICE GIVEN WAS TIMELY.

"4. THE PRINCIPLE OF ESTOPPEL WAS NOT APPLICABLE, WHEN NO NOTICE WAS REQUIRED UNDER THE PROVISIONS OF THE LETTER OF INTENT.'

THE RECORD SHOWS THAT YOUR FIRST REQUEST OF OCTOBER 2, 1952, FOR AN EXTENSION OF TIME WAS BASED SOLELY UPON UNFORESEEN CONDITIONS IN CONNECTION WITH THE SINKING OF THE SHAFT FOR THE MULCAHY MINE. IN YOUR LETTER YOU STATED:

"WE FEEL THAT YOU SHOULD BE INFORMED IN THIS CONNECTION AT THIS POINT BECAUSE VINEGAR HILL IS HEREBY MAKING A DEFINITE CLAIM FOR THE EXTENSION OF THE PERIOD FOR PRODUCTION BY THREE MONTHS AND UPON THE BASIS OF THE FORCE MAJEURE PROVISIONS OF THE LETTER OF INTENT. THE VINEGAR HILL ENGINEERS HAVE PREPARED FOR ME A STATEMENT DESCRIBING THE UNFORESEEN CONDITIONS ENCOUNTERED IN SINKING THE MINE SHAFT * * *.'

AS YOU STATE, THIS REQUEST WAS MADE DURING THE PERIOD WHEN THE LETTER OF INTENT WAS IN FORCE AND THE FORCE MAJEURE CONDITIONS OF THAT INSTRUMENT DID NOT REQUIRE ANY NOTICE. ALTHOUGH THE RECORD INDICATES THAT A DELAY OF FIVE MONTHS WAS OCCASIONED IN THE SINKING OF THE SHAFT (PAGE 4 OF YOUR BRIEF), YOU STATE THAT, IN ASKING FOR THE THREE-MONTH EXTENSION,"VINEGAR HILL NATURALLY REQUESTED ONLY THE TIME IT THEN FELT WOULD BE REQUIRED TO COMPLETE DELIVERY OF THE 5,000 TONS OF SLAB ZINC" AND "IT HAD NOT YET EXPERIENCED DELAY FROM THE OTHER FORCE MAJEURE CONDITIONS * * *.' IN THE CIRCUMSTANCES, SINCE THE SINKING OF THE SHAFT WAS COMPLETED IN APRIL 1952 AND THE CONTRACTOR WAS GRANTED THE ENTIRE EXTENSION OF PRODUCTION TIME REQUESTED (THREE MONTHS) UNDER THE LETTER OF INTENT, AND SINCE THE LETTER OF INTENT SUBSEQUENTLY WAS REPLACED BY THE DEFINITIVE CONTRACT, THE FINDING OF THE BOARD OF REVIEW THAT THE OPPORTUNITY FOR GRANTING THE FURTHER EXTENSION BY REASON OF DIFFICULTIES ENCOUNTERED IN SINKING THE SHAFT HAD PASSED APPEARS CORRECT AND PROPER.

THE LETTER ORDER REFERRED TO A DEFINITIVE CONTRACT TO BE NEGOTIATED AND DID NOT PURPORT TO CONTAIN ALL THE TERMS OF THE AGREEMENT. THEREFORE, THERE IS FOR APPLICATION THE SETTLED RULE OF CONSTRUCTION THAT PREVIOUS AND CONTEMPORARY NEGOTIATIONS ARE PRESUMED TO BE MERGED IN THE FORMAL WRITTEN AGREEMENT WHICH EXPRESSES THE FINAL UNDERSTANDING OF THE PARTIES THERETO. BRAWLEY V. UNITED STATES, 96 U.S. 168; SOUTH BOSTON IRON CO. V. UNITED STATES, 118 U.S. 37; ROCKY BROOK MILLS COMPANY V. UNITED STATES, 70 C.CLS. 646, 659. ACCORDINGLY, IT MUST BE HELD THAT THE DEFINITIVE CONTRACT CONSTITUTES THE ONLY AGREEMENT WHICH IS APPLICABLE TO THE QUESTION OF WHETHER THE CONTRACTOR LEGALLY WAS ENTITLED TO EXTENSIONS OF TIME FOR PRODUCTION FOR THE DELAY ENCOUNTERED IN EXTRACTING THE ORE AND THE DELAY OCCASIONED BY THE QUALITY OF THE ORE MINED.

THE BOARD OF REVIEW FOUND THAT THE CONDITIONS WHICH WERE ENCOUNTERED IN EXTRACTING THE ORE AND IN THE GRADE OF THE ORE WERE FORCE MAJEURE CONDITIONS WITHIN THE PURVIEW OF ARTICLE XIX OF THE DEFINITIVE CONTRACT, QUOTED ABOVE, WHICH REQUIRES WRITTEN NOTICE OF WITHIN TEN DAYS AFTER THE OCCURRENCE OF THE HAPPENINGS OR EVENTS. THE RECORD SHOWS THAT PRODUCTION COMMENCED IN JULY 1952 AND THAT WRITTEN NOTICE OF THESE CONDITIONS WAS NOT GIVEN UNTIL OCTOBER 11, 1954. THE BOARD OF REVIEW CONCLUDED, THEREFORE, THAT THE FAILURE TO ASSERT YOUR RIGHTS UNDER ARTICLE XIX WITHIN THE TIME PRESCRIBED CONSTITUTES A LEGAL BAR TO EXTENDING THE TIME FOR PRODUCTIONS BY REASON OF FORCE MAJEURE CONDITIONS CAUSED BY UNEXPECTED DIFFICULTIES REGARDING MINING METHODS AND THE GRADE OF ORE.

AS TO THE FOREGOING, YOU CONTEND THAT, IF NOTICE WAS REQUIRED, IT HAD BEEN WAIVED BY DECIDING THE QUESTION OF EXTENSION ON ITS MERITS, WITHOUT REFERENCE TO THE NOTICE REQUIREMENT, AND BY AGREEING TO SEVERAL EARLIER EXTENSIONS WITHOUT ASSERTING THE DEFENSE OF LACK OF NOTICE. YOU REFER TO THE LETTER OF OCTOBER 19, 1954, IN WHICH THE COMMISSIONER, EMERGENCY PROCUREMENT SERVICE, ADVISED YOU THAT THE CONDITIONS CAUSING THE DELAY WERE NOT FORCE MAJEURE CONDITIONS BUT RATHER NORMAL BUSINESS RISKS AND MADE NO MENTION OF THE FAILURE TO GIVE NOTICE.

A PREREQUISITE INGREDIENT OF THE WAIVER OF A RIGHT OR PRIVILEGE CONSISTS OF AN INTENTION TO RELINQUISH IT. GARVY V. BLATCHFORD CALF MEAL CO., 119 F.2D 973. A WAIVER NEED NOT BE EXPRESSED BUT IT MUST BE EVIDENCED BY CONDUCT OF AN UNEQUIVOCAL CHARACTER. MEARS V. FARMERS CO-OP. FIRE INSURANCE CO., 28 A.2D 699. ANDERSON V. TWAY, 143 F.2D 95, CERTIORARI DENIED, 324 U.S. 861. IN EACH OF THE COURT CASES CITED BY YOU THE CLAIM WAS CONSIDERED ON ITS MERITS, WITHOUT ANY MENTION OF THE FACT THAT IT HAD BEEN FILED TOO LATE, AND FROM THIS THE COURT HELD THAT A WAIVER WAS TO BE IMPLIED. HOWEVER, IN REACHING ITS CONCLUSION IN THE RUNDEL CORPORATION V. THE UNITED STATES, 96 C.CLS. 77, THE COURT STATED (PAGE 111) THAT A WAIVER CANNOT BE IMPLIED IF THERE ARE FACTS IN THE CASE TO REBUT THE IMPLICATION OF A WAIVER ARISING FROM THE CONSIDERATION OF THE CLAIM ON ITS MERITS, CITING JOHNSON V. THE UNITED STATES, 94 C.CLS. 175, 202. WHILE, AS YOU STATE, THE COMMISSIONER, EMERGENCY PROCUREMENT SERVICE, MADE NO MENTION OF THE NOTICE REQUIREMENT IN HIS LETTER OF OCTOBER 19, 1954, TO THE CONTRACTOR, HE HAD ALREADY STATED IN HIS PRIOR LETTER OF OCTOBER 6, 1954, REFERRED TO ABOVE, THAT THE CONTRACTOR WOULD BE REQUIRED TO STATE "THE REASON FOR FAILING TO COMPLY WITH THE TEN-DAY NOTICE REQUIREMENT" AND THAT THE EXTENSION OF 30 DAYS "IN NO WAY IMPOSES AN OBLIGATION ON THE GOVERNMENT AFTER ITS REVIEWS OF YOUR REPORT TO GRANT ADDITIONAL TIME FOR PERFORMANCE ON YOUR PART UNDER THE CONTRACT, IF, IN THE GOVERNMENT'S OPINION, ITS FINDINGS DO NOT WARRANT SUCH AN EXTENSION OR A DETERMINATION IS MADE BY THIS OFFICE THAT A VALID FORCE MAJEURE CONDITION DID NOT EXIST.' THUS, WHILE THE CONTRACTING AGENCY PERMITTING YOU TO SUBMIT EVIDENCE TO SUPPORT YOUR CONTENTIONS REGARDING FORCE MAJEURE CONDITIONS, IT CLEARLY IS INDICATED THAT IT WAS NOT INTENDED TO WAIVE THE CONTRACTOR'S FAILURE TO MAKE A WRITTEN REQUEST FOR AN EXTENSION IN THE TIME FOR CONTRACT PERFORMANCE WITHIN THE TIME PRESCRIBED BY THE CONTRACT. THEREFORE, THE FACTS IN THIS CASE MUST BE HELD SUFFICIENT TO REBUT ANY IMPLICATION OF A WAIVER ARISING FROM THE CONSIDERATION OF THE CLAIM ON ITS MERITS BY THE COMMISSIONER, EMERGENCY PROCUREMENT SERVICE, AND THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION. JOHNSON V. UNITED STATES, SUPRA. IT IS TO BE NOTED THAT THE TWO EXTENSIONS OF ONE MONTH EACH WERE NOT GRANTED UNDER THE FORCE MAJEURE PROVISIONS OF THE CONTRACT BUT IN ORDER TO AFFORD THE CONTRACTOR SUFFICIENT TIME TO PRESENT EVIDENCE REGARDING ITS CONTENTIONS REGARDING FORCE MAJEURE CONDITIONS.

AS STATED ABOVE, THE RIGHTS AND LIABILITIES OF THE PARTIES ARE FIXED BY THE TERMS OF THE DEFINITIVE CONTRACT. ARTICLE XIX PROVIDED FOR ASSERTION OF THE CONTRACTOR'S RIGHTS TO AN EXTENSION OF THE TIME FOR PRODUCTION IN WRITING WITHIN TEN DAYS AFTER THE OCCURRENCE OF THE HAPPENINGS OR EVENTS. HOWEVER, THE CONTRACTOR FAILED TO AVAIL ITSELF OF THIS PROVISION. THE LAW IS CLEAR THAT WHERE, AS HERE, PARTIES HAVE AGREED UPON A METHOD OF PROCEDURE FOR THE DETERMINATION OF MATTERS NOT INVOLVING QUESTIONS OF LAW AND THE CONTRACTOR FAILS TO PURSUE AND EXHAUST THE PROCEDURE SO PROVIDED, HIS FAILURE OPERATES AS AN ESTOPPEL AGAINST HIM WITH RESPECT TO SUCH CLAIMS AS MAY HAVE BEEN MADE AND ADJUDICATED UNDER THE TERMS OF THE CONTRACT. SEE UNITED STATES V. JOSEPH A. HOLPUCH CO., 328 U.S. 234. SEE, ALSO, UNITED STATES V. CALLAHAN-WALKER CONSTRUCTION COMPANY, 317 U.S. 56; ALSO, PLUMLEY V. UNITED STATES, 226 U.S. 545; UNITED STATES V. GLEASON, 175 U.S. 588; UNITED STATES V. CUNNINGHAM, 125 F.2D 28; AND 18 COMP. GEN. 232.

WE CANNOT AGREE WITH YOUR CONTENTION THAT THE FORCE MAJEURE CONDITIONS INVOLVED WERE NOT SUCH AS TO LEND THEMSELVES TO THE GIVING OF NOTICE. THIS CONNECTION, YOU STATE THAT THE USUAL 10-DAY NOTICE RELATES TO SUCH CIRCUMSTANCES AS FIRE, TORNADO AND STRIKES. HOWEVER, THE CONTRACT EXPRESSLY GIVES A WIDER SIGNIFICANCE TO FORCE MAJEURE. UNDER ITS TERMS FORCE MAJEURE IS DEFINED AS ANY CAUSE OR CAUSES BEYOND THE RESPECTIVE CONTROL OF THE CONTRACTOR OR THE GOVERNMENT WHICH CANNOT BE OVERCOME BY DUE DILIGENCE. ACCORDINGLY, IT IS OUR VIEW THAT THE FINDING OF THE BOARD OF REVIEW OF THE GENERAL SERVICES ADMINISTRATION THAT THE DIFFICULTIES THAT WERE EXPERIENCED IN THE EXTRACTING OF THE ORE AND THOSE PERTAINING TO THE GRADE OF ORE WERE FORCE MAJEURE CONDITIONS WITHIN THE CONTEMPLATION OF ARTICLE XIX OF THE CONTRACT REQUIRING THE 10-DAY NOTICE IN WRITING WAS CORRECT AND PROPER.

IN VIEW OF THE FOREGOING, WE HAVE NO ALTERNATIVE BUT TO DISALLOW YOUR CLAIM.