B-158578, MAY 24, 1966

B-158578: May 24, 1966

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SOUTHEAST REGION: REFERENCE IS MADE TO YOUR LETTER OF APRIL 5. THE CONTRACTOR ALSO ALLEGED THAT ADDITIONAL EXTENSIONS OF TIME FOR PERFORMANCE SHOULD HAVE BEEN GRANTED. FOUND THAT THE CONTRACTOR WAS ENTITLED TO EXTENSION OF TIME FOR PART OF THE PERIOD CLAIMED. THE BOARD ALSO FOUND THAT THE CONTRACTOR WAS ENTITLED ON THE BASIS OF CONSTRUCTIVE CHANGES TO AN EQUITABLE ADJUSTMENT OF $36. A MOTION FOR RECONSIDERATION FILED BY THE GOVERNMENT'S ATTORNEY WAS DENIED BY THE BOARD ON FEBRUARY 4. FROM AN EXAMINATION OF THE RECORD WE FIND THAT THESE FACTUAL DETERMINATIONS BY THE BOARD WERE NOT FRAUDULENT. OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH AND THAT THEY WERE SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD BEFORE THE BOARD.

B-158578, MAY 24, 1966

TO AUTHORIZED CERTIFYING OFFICER, UNITED STATES DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, SOUTHEAST REGION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 5, 1966, REQUESTING A DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT AN AWARD MADE BY THE INTERIOR BOARD OF CONTRACT APPEALS IN APPEAL OF LINCOLN CONSTRUCTION COMPANY, IBCA-438-5-64, UNDER CONTRACT NO. 14-10-0131 1157.

THE CONTRACT COVERED THE CONSTRUCTION OF TWO DIKES OF SAND IN THE VICINITY OF THE LIGHTHOUSE ON CAPE HATTERAS, NORTH CAROLINA. AT THE CONCLUSION OF WORK THE CONTRACTOR SUBMITTED CLAIMS FOR ADDITIONAL COMPENSATION FOR INCREASED COSTS OF PERFORMANCE ALLEGEDLY CAUSED BY ACTIONS OF THE GOVERNMENT AND/OR CHANGED CONDITIONS. THE CONTRACTOR ALSO ALLEGED THAT ADDITIONAL EXTENSIONS OF TIME FOR PERFORMANCE SHOULD HAVE BEEN GRANTED. FOLLOWING THE DENIAL OF SUCH CLAIMS BY THE CONTRACTING OFFICER, THE CONTRACTOR APPEALED TO THE BOARD OF CONTRACT APPEALS. THE BOARD IN DECISION OF NOVEMBER 26, 1965 (IBCA-438-5-64), FOUND THAT THE CONTRACTOR WAS ENTITLED TO EXTENSION OF TIME FOR PART OF THE PERIOD CLAIMED. THE BOARD ALSO FOUND THAT THE CONTRACTOR WAS ENTITLED ON THE BASIS OF CONSTRUCTIVE CHANGES TO AN EQUITABLE ADJUSTMENT OF $36,000 FOR INCREASED COSTS OF PERFORMANCE DUE TO THE ACTIONS OF THE GOVERNMENT IN CHANGING THE OUTLINES OF THE BORROW AREA AND IN REFUSING TO PERMIT THE USE OF A SECOND ACCESS ROAD TO THE BORROW AREA. A MOTION FOR RECONSIDERATION FILED BY THE GOVERNMENT'S ATTORNEY WAS DENIED BY THE BOARD ON FEBRUARY 4, 1966.

THE DECISION BY THE BOARD INCLUDES EXTENSIVE STATEMENTS OF THE EVENTS THAT LED UP TO THE FILING OF THE CLAIM, AND FROM AN EXAMINATION OF THE RECORD WE FIND THAT THESE FACTUAL DETERMINATIONS BY THE BOARD WERE NOT FRAUDULENT, OR CAPRICIOUS, OR ARBITRARY, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH AND THAT THEY WERE SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD BEFORE THE BOARD. CONSEQUENTLY, SUCH FACTUAL DETERMINATIONS BY THE BOARD ARE FINAL AND CONCLUSIVE UNDER SECTION 1 OF THE WUNDERLICH ACT, 41 U.S.C. 321. FURTHER, WE FIND NO BASIS TO QUESTION THE LEGAL CONCLUSIONS REACHED BY THE BOARD AS A NECESSARY INCIDENT TO ITS FACTUAL DETERMINATIONS.

ACCORDINGLY, YOU ARE ADVISED THAT YOU MAY CERTIFY FOR PAYMENT A VOUCHER DRAWN IN ACCORDANCE WITH THE BOARD'S DECISION IN IBCA-438-5 64.