B-140907, NOV. 6, 1961

B-140907, NOV. 6, 1961

TO SOUTHWEST ENGINEERING COMPANY, INC.:

BY LETTER OF MAY 22, 1961, AND SUBSEQUENT CORRESPONDENCE YOU SUBMITTED A CLAIM IN AN UNSPECIFIED AMOUNT IN CONNECTION WITH WORK PERFORMED ON CONTRACTS WITH THE CIVIL AERONAUTICS ADMINISTRATION AND THE FEDERAL AVIATION AGENCY FOR ELECTRICAL WORK AT VARIOUS AIRPORTS. THE ITEMS MAKING UP THE CLAIM HAVE BEEN CONSIDERED AND DENIED BY THE CONTRACTING OFFICER AND THE ADMINISTRATOR, FEDERAL AVIATION AGENCY.

EACH OF THE CONTRACTS INVOLVED CONTAINED A PROVISION THAT QUESTIONS OF FACT SHOULD BE DECIDED BY THE CONTRACTING OFFICER AND, SUBJECT TO APPEAL TO THE HEAD OF THE AGENCY OR HIS DULY AUTHORIZED REPRESENTATIVE, SUCH DETERMINATIONS WERE MADE FINAL AND CONCLUSIVE UNLESS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE "FRAUDULENT, ARBITRARY, CAPRICIOUS, OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH.' UNDER THE ACT OF MAY 11, 1954, 68 STAT. 81, 41 U.S.C. 321, PROVISIONS OF THIS TYPE MAKE SUCH FINDINGS OF FACT FINAL AND CONCLUSIVE SUBJECT TO THE LISTED EXCEPTIONS; IN ADDITION, THE DECISIONS MAY BE OVERTURNED IF "NOT SUPPORTED BY SUBSTANTIAL DENCE.' WHILE THE BASIS FOR YOUR CLAIM BEFORE OUR OFFICE IS RATHER SKETCHILY PRESENTED, WE ASSUME IT IS YOUR CONTENTION THAT THE ADVERSE DETERMINATIONS OF THE CONTRACTING OFFICER AND THE ADMINISTRATOR WERE EITHER NOT SUPPORTED BY SUBSTANTIAL EVIDENCE OR INVOLVED QUESTIONS OF LAW RATHER THAN OF FACT.

CONTRACT NO. K-C2CA-5464-A WAS ENTERED INTO ON MARCH 31, 1958, FOR THE INSTALLATION OF AN APPROACH LIGHTING SYSTEM AT LOVELL FIELD, CHATTANOOGA, TENNESSEE. THE WORK INCLUDED EXCAVATION AND FILL FOR A ROAD WHICH WAS TO BE LAID OUT BY REPRESENTATIVES OF THE GOVERNMENT. IT IS STATED THAT AFTER WORK HAD BEGUN THE GOVERNMENT REPRESENTATIVES ADVISED THE CONTRACTOR THAT THE FILL SHOULD BE MOVED APPROXIMATELY 20 FEET. AFTER AN ADDITIONAL DAY'S WORK RELOCATING THE FILL, THE CONTRACTOR WAS DIRECTED TO RESTORE THE ROADBED TO ITS ORIGINAL LOCATION. YOU SUBMITTED A CLAIM FOR THE ADDITIONAL WORK OF REMOVING AND RESTORING THE FILL IN THE AMOUNT OF $1,890 WHICH WAS LATER REDUCED TO $801.68 BY YOUR LETTER OF MAY 7, 1959.

THE CLAIM WAS DENIED BY THE CONTRACTING OFFICER IN A LETTER DATED FEBRUARY 5, 1959, ON THE GROUNDS THAT THE STAKES LAYING OUT THE ROADBED HAD BEEN PROPERLY SET BY THE GOVERNMENT REPRESENTATIVES BUT HAD BEEN SHIFTED BY THE EARTH-MOVING EQUIPMENT, CAUSING THE ADDITIONAL WORK. SUPPORT OF HIS CONCLUSION THERE HAS BEEN CITED A LETTER FROM THE EARTH- MOVING SUBCONTRACTOR OF NOVEMBER 19, 1958, ATTRIBUTING THE ERROR TO LACK OF SUPERVISION (PRESUMABLY BY THE CONTRACTOR). THE APPEAL FROM THE CONTRACTING OFFICER'S DECISION WAS NOT FILED WITH THE ADMINISTRATOR UNTIL JUNE 22, 1959, WELL AFTER THE 30-DAY LIMITATION SET OUT IN PARAGRAPH 6 OF THE CONTRACT'S GENERAL PROVISIONS. THE APPEAL WAS DENIED BY THE ADMINISTRATOR IN A DECISION OF APRIL 6, 1961, AS NOT TIMELY FILED.

IT APPEARS TO BE YOUR CONTENTION THAT THE CLAIM WAS NOT IN FACT FILED UNTIL THE "ADJUSTED LAIM" FOR $801.68 WAS SUBMITTED BY LETTER OF MAY 7, 1959. WE FIND NO BASIS FOR YOUR CONTENTION SINCE THE CLAIM APPEARS FIRST TO HAVE BEEN SUBMITTED BY LETTER OF SEPTEMBER 29, 1958, AND IN A LETTER OF NOVEMBER 3, 1958, YOU STATED,"* * * WE ARE HEREWITH RENEWING OUR CLAIM FOR $1890.00 FOR THE RELOCATING OF DIRT IN THE ROADWAY * * *.' IN OUR JUDGMENT THE LETTER CONTAINED NOTHING TO INDICATE THAT IT DID NOT CONSTITUTE A FORMAL CLAIM.

THERE APPEARS NO QUESTION THAT THE ISSUE IS ONE OF FACT AND THAT THE CONTRACTING OFFICER'S LETTER OF FEBRUARY 5, 1959, CONSTITUTED A FINDING OF FACT WHICH UNDER THE DISPUTED CLAUSE MUST BE REGARDED AS CONCLUSIVE UNLESS APPEALED WITHIN THE STATED 30-DAY PERIOD. SEE APPEALS OF CAMEL MANUFACTURING CO., ASBCA NOS. 3453-3455. FAILURE TO PURSUE THE ADMINISTRATIVE REMEDIES PROVIDED UNDER THE TERMS OF THE CONTRACT CONCLUDES THE MATTER AND THE CONTRACTOR CANNOT THEN ATTACK THE DETERMINATION IN A COURT OR OTHER TRIBUNAL AS UNSUPPORTED BY SUBSTANTIAL EVIDENCE. UNITED STATES V. BLAIR (1943) 321 U.S. 730; HENRY E. WILE CO. V. UNITED STATES (1959), 169 F.SUPP. 249. THEREFORE, YOUR CLAIM FOR THIS ITEM IS DENIED.

CONTRACT NO. C2CA-6099-A WAS AWARDED ON DECEMBER 15, 1958, FOR THE CONSTRUCTION OF SEQUENCED FLASHER LIGHTS AT THE MUNICIPAL AIRPORT, TULSA, OKLAHOMA. YOU SUBMITTED CLAIMS OF $357 FOR MATERIALS AND LABOR TO PAINT JUNCTION BOXES AND CONDUIT, AND $96 FOR FURNISHING AND INSTALLING ANGLE IRON CABLE HANGERS, CONTENDING THAT THIS REPRESENTED EXTRA WORK NOT CALLED FOR BY THE TERMS OF THE CONTRACT. THE CONTRACTING OFFICER BY LETTERS OF APRIL 13 AND 24, 1959, DENIED THE CLAIMS ON THE GROUNDS THAT THE WORK WAS INCLUDED WITHIN THE ORIGINAL CONTRACT TERMS. THE MATTERS WERE APPEALED ON APRIL 27, 1959, AND BY DECISION OF AUGUST 17, 1959, THE ADMINISTRATOR UPHELD THE CONTRACTING OFFICER.

THE BASIS OF THE CLAIMS WAS FULLY CONSIDERED IN THE DECISION ON APPEAL. NO PURPOSE WOULD BE SERVED BY RESTATING THE FACTS PRESENTED IN SUPPORT OF THE DENIAL. IN OUR VIEW IT IS SUFFICIENT TO STATE THAT UPON CAREFUL EXAMINATION OF THE EVIDENCE WE FIND NO BASIS FOR DISAGREEING WITH THE ADMINISTRATOR'S CONCLUSIONS.

THE REMAINING ITEMS IN THE CLAIM ARISE UNDER CONTRACT NO. FA2-230 ENTERED INTO MARCH 27, 1959, FOR THE INSTALLATION OF AN APPROACH LIGHTING SYSTEM AND SEQUENCE FLASHING LIGHTS AT BIRIMINGHAM, ALABAMA. THE FIRST ITEM IS A CLAIM FOR THE SUPPLY AND INSTALLATION OF FIBER DUCT IN THE AMOUNT OF $15,987.40. A QUESTION AROSE EARLY IN THE COURSE OF THE CONTRACT AS TO WHETHER THE FIBER DUCT WAS REQUIRED TO BE INSTALLED IN THE OVERRUN AREA UNDER THE TERMS OF THE SPECIFICATIONS. ON JUNE 10, 1959, THE CONTRACTING OFFICER SENT THE CONTRACTOR A NOTICE TO PROCEED WHICH INCLUDED THE OLLOWING:

"BY SIGNATURE IN THE SPACE PROVIDED BELOW ACKNOWLEDGING RECEIPT OF THIS NOTICE, YOU SIGNIFY YOUR INTENTION TO FURNISH FIBER DUCT WORK IN THE OVERRUN AREA AS PART OF THE CONTRACT WITHIN THE TIME AND AT THE PRICES ORIGINALLY QUOTED.'

THIS WAS ACKNOWLEDGED AND AGREED TO BY THE CONTRACTOR ON JUNE 15. AT THE SAME TIME THE CONTRACTOR INFORMED THE CONTRACTING OFFICER IN WRITING AS FOLLOWS:

"BY ACKNOWLEDGING THIS NOTICE TO PROCEED, WITH ITS UNUSUAL WORDING, IT IS NOT OUR INTENTION TO FORFEIT OR ABRIDGE OUR CONTRACTUAL RIGHTS TO ANY VALID CLAIM WE MAY HAVE COVERING ANY ADDITIONAL LABOR OR MATERIALS, NOT INCLUDED IN THE ORIGINAL CONTRACT, WHICH MAY BE REQUESTED OF US BY YOUR AGENCY AT ANY TIME THROUGHOUT THE PERIOD OF CONSTRUCTION.'

IT APPEARS TO BE THE CONTRACTOR'S POSITION THAT IT DID NOT CONSENT IN THE FOREGOING EXCHANGE OF CORRESPONDENCE TO PERFORM THE FIBER DUCT WORK WITHOUT INCREASED COMPENSATION.

IT IS NOT UNUSUAL FOR AMBIGUITIES IN CONTRACTS TO BE RESOLVED BY A WRITTEN AGREEMENT OF THE PARTIES SETTING OUT THE MUTUALLY AGREED-UPON INTERPRETATION. SUCH INTERPRETATIONS ARE NORMALLY ACCEPTED BY THE COURTS. LEASE V. CORVALLIS SAND AND GRAVEL COMPANY (1950), 185 F.2D 570. IN THIS CASE THE STATEMENT IN THE LETTER OF JUNE 10, 1959, FROM THE CONTRACTING OFFICER, WHICH WAS ACKNOWLEDGED AND AGREED TO BY THE CONTRACTOR, APPEARS CLEARLY TO BE AN AGREEMENT BY THE PARTIES THAT THE FIBER DUCT WORK IN THE OVERRUN AREA WAS INTENDED TO BE INCLUDED IN THE ORIGINAL PRICE. THE LANGUAGE USED BY THE CONTRACTOR IN HIS STATEMENT OF JUNE 15 IS MUCH MORE GENERAL THAN THE CONTRACTING OFFICER'S STATEMENT AND THE TWO CAN CERTAINLY BE RECONCILED. IN OUR VIEW IT IS NOT UNREASONABLE TO ASSUME, AS THE CONTRACTING OFFICER APPARENTLY DID, THAT THE CONTRACTOR INTENDED THAT THE TWO WRITTEN STATEMENTS REFERRED TO ABOVE SHOULD BE INTERPRETED TOGETHER. HOWEVER, IF THE EXCHANGE BETWEEN THE PARTIES SHOULD NOT BE INTERPRETED AS AN AGREEMENT TO REGARD THE FIBER DUCT WORK AS INCLUDED IN THE ORIGINAL CONTRACT PRICE, THEN THE CONTRACTING OFFICER'S LETTER OF JUNE 10 MUST BE REGARDED AS DIRECTING A CHANGE IN THE CONTRACT. UNDER ARTICLE 2 OF STANDARD FORM 23A, INCORPORATED IN THE CONTRACT, ANY CLAIM FOR AN ADJUSTMENT IN THE PRICE IN CONSIDERATION OF A CHANGE MUST BE SUBMITTED BY THE CONTRACTOR IN WRITING TO THE CONTRACTING OFFICER WITHIN 30 DAYS. NO SUCH CLAIM WAS SUBMITTED IN THIS CASE UNTIL LONG AFTER THE TIME HAD EXPIRED, EVEN THOUGH THE CONTRACTOR WAS UNDOUBTEDLY AWARE OF THE REQUIREMENT. THE FAILURE TO COMPLY WITH THE CONTRACT REQUIREMENT MUST BE REGARDED AS FATAL TO ANY FAVORABLE CONSIDERATION OF THE CLAIM HERE. SEE YUHASZ V. UNITED STATES (1940), 109 F.2D 467. IN ADDITION, THE FAILURE TO SUBMIT THE CLAIM FOR ADJUSTMENT WITHIN THE PROPER PERIOD, NOTWITHSTANDING THE CONTRACTOR'S AWARENESS OF THE REQUIREMENT, TENDS FURTHER TO ESTABLISH THAT THE PARTIES INTENDED, BY THE EXCHANGE OF CORRESPONDENCE CITED ABOVE, TO AGREE TO THE INTERPRETATION THAT THE FIBER DUCT WORK WAS INCLUDED IN THE ORIGINAL CONTRACT PRICE. ACCORDINGLY, THE CLAIM IS DENIED.

THE CONTRACTOR ALSO SUBMITTED A CLAIM IN THE AMOUNT OF $8,400 FOR WORK IN CONNECTION WITH THE INSTALLATION OF 14 HANDHOLES IN THE OVERRUN AREA. DECISION ON APPEAL, DATED APRIL 15, 1961, THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, HELD THAT THE GOVERNMENT SHOULD REIMBURSE THE CONTRACTOR FOR TWO OF THE HANDHOLES BUT UPHELD THE CONTRACTING OFFICER'S REFUSAL TO MAKE AN ADJUSTMENT WITH RESPECT TO THE OTHER 12. ITEM 5 OF SCHEDULE 1 OF THE CONTRACT REQUIRES THE CONTRACTOR TO FURNISH ALL LABOR AND MATERIALS TO PERFORM A COMPLETE JOB "AS PER DRAWINGS" AND DESIGNATED SPECIFICATIONS. SITE DRAWING NO. FW-E-1381-2 INDICATES INSTALLATIONS IN THE OVERRUN AREA BY THE USE OF SMALL SQUARES. THE CONTRACTOR HAS TAKEN THE POSITION THAT BASED ON COMMERCIAL USAGE SUCH FIGURES INDICATE HANDHOLES ONLY WHEN THE LETTER H APPEARS IN THE CENTER. THE CONTRACTING OFFICER, HOWEVER, HAS FOUND THAT THE FIGURE WITHOUT THE LETTER DESIGNATES HANDHOLES UNDER ACCEPTED MILITARY USAGE. FURTHER, PARAGRAPH 5.7.1.7 OF THE SPECIFICATIONS STATES THAT HANDHOLES SHALL BE INSTALLED BY THE CONTRACTOR IN THE OVERRUN AREA WHEN INDICATED IN PROPOSALS. FINALLY, THE TYPICAL DRAWING NO. D-5219 SHOWS HANDHOLES IN PAVED OVERRUN AREAS. THE CONTRACTOR CONCEDES THAT THE TYPICAL DRAWING INDICATES THE USE OF HANDHOLES IN PAVED OVERRUN AREAS, BUT CONTENDS THAT THE DRAWING IS NOT PART OF THE PROPOSAL AND THE REFERENCE TO DRAWINGS IN THE DESCRIPTION OF THE ITEM IS LIMITED TO SITE DRAWINGS. FIND NOTHING IN THE ITEM DESCRIPTION OR IN THE CONTRACT GENERALLY TO SUPPORT THE CONTENTION THAT THE REFERENCE TO DRAWINGS WAS INTENDED NOT TO INCLUDE THE TYPICAL DRAWING. THE CONTRACTOR FURTHER CONTENDS THAT EVEN IF THE TYPICAL DRAWING IS REGARDED AS APPLICABLE, IT INDICATES THE USE OF HANDHOLES ONLY IN PAVED OVERRUNS, WHILE THE OVERRUN HERE IN QUESTION IS COVERED BY COMPACTED CRUSHED LIMESTONE WHICH IN THE CONTRACTOR'S VIEW IS NOT PAVING. THE ADMINISTRATOR, IN HIS DECISION ON APPEAL, TAKES THE POSITION THAT THE OVERRUN AREA IN THIS INSTANCE, WHICH IS COVERED BY WHAT HE DESCRIBES AS COMPACTED CRUSHED LIMESTONE BOUND BY A CEMENT EARTH BINDER IS PAVING. WHETHER THE MATERIAL IN QUESTION CONSTITUTES PAVING IS A QUESTION OF FACT AND IN OUR VIEW NOTHING HAS BEEN PRESENTED BY THE CONTRACTOR TO JUSTIFY A FINDING THAT THE FACTUAL DETERMINATION OF THE CONTRACTING OFFICER WHICH WAS UPHELD ON APPEAL SHOULD NOT BE REGARDED AS FINAL AND CONCLUSIVE. THEREFORE, THE CLAIM FOR INSTALLATION OF THE 12 HANDHOLES IS DENIED.

THE NEXT CLAIM PRESENTED IS IN THE AMOUNT OF $2,146.19 FOR ENTRENCHING SEQUENCE FLASHING LIGHT CABLE AND POWER CABLE FROM STATION 18 PLUS 45 THROUGH STATION 30 PLUS 00. THE SITE DRAWINGS CONTAINED A STATEMENT INDICATING THAT THE POWER CABLES WERE TO BE RUN OVERHEAD RATHER THAN BURIED. THERE WAS NO INDICATION IN THE DRAWINGS THAT THE SEQUENCE FLASHING LIGHT CABLE WAS TO GO EITHER UNDERGROUND OR OVERHEAD. THE CONTRACTOR REASONABLY ASSUMED THAT BOTH CABLES WOULD BE TREATED IN THE SAME MANNER. SECTION 5.7.1 OF THE SPECIFICATIONS STATES THAT CABLE RUNS ARE NORMALLY BURIED. IN ADDITION, THE SITE DRAWINGS INDICATED CERTAIN BENDS IN THE CABLE WHICH WOULD BE INCONSISTENT WITH OVERHEAD STRINGING BUT WOULD NORMALLY BE REQUIRED IN CONNECTION WITH ENTRENCHMENT. AFTER AWARD THE CONTRACTOR RAISED A QUESTION BY LETTER OF APRIL 20, 1959, WITH RESPECT TO THE PROPER LOCATION OF THE CABLE. IN REPLY, BY LETTER OF APRIL 22 FROM THE CHIEF, FEDERAL AVIATION AGENCY, REGIONAL PLANT ENGINEERING BRANCH, HE WAS ADVISED THAT THE CABLES SHOULD GO UNDERGROUND. IN A MEETING OF SEPTEMBER 3, 1959, THE CONTRACTOR INDICATED THAT THE MATTER SHOULD BE RESOLVED EVEN THOUGH IT MADE VERY LITTLE DIFFERENCE TO HIM BECAUSE THE PRICE WOULD BE ABOUT THE SAME. BY LETTER OF OCTOBER 14, 1959, AFTER WORK ON THIS PHASE HAD ALREADY BEGUN, THE CONTRACTOR REQUESTED WRITTEN INSTRUCTIONS FROM THE CONTRACTING OFFICER WITH RESPECT TO THE TREATMENT OF THE CABLES. ON OCTOBER 23, 1959, THE CONTRACTING OFFICER PROPOSED A CHANGE IN THE CONTRACT FOR LAYING POWER CABLE UNDERGROUND BUT STATED THAT THERE WOULD BE NO TIME EXTENSION. IN A REPLY OF OCTOBER 27 THE CONTRACTOR INSISTED THAT THE TIME SHOULD BE EXTENDED AND ADDED AN ITEM FOR ENTRENCHING THE SEQUENCE FLASHING LIGHT CABLE. AFTER THIS EXCHANGE OF CORRESPONDENCE THE PROPOSED CHANGE ORDER WAS WITHDRAWN. PARAGRAPH 2 OF THE GENERAL PROVISIONS TO THE CONTRACT STATES---

"* * * IN ANY CASE OF DISCREPANCY EITHER IN THE FIGURES, IN THE DRAWINGS, OR IN THE SPECIFICATIONS, THE MATTER SHALL BE PROMPTLY SUBMITTED TO THE CONTRACTING OFFICER, WHO SHALL PROMPTLY MAKE A DETERMINATION IN WRITING. ANY ADJUSTMENT BY THE CONTRACTOR WITHOUT THIS DETERMINATION SHALL BE AT HIS OWN RISK AND EXPENSE. * * *.' IN THIS CASE THE CONTRACTOR, NOTWITHSTANDING THE INFORMATION IN THE SITE DRAWINGS WITH RESPECT TO THE LAYING OF THE POWER CABLES, RECOGNIZED THE EXISTENCE OF A DISCREPANCY IN VIEW OF THE INFORMATION IN THE SPECIFICATIONS AT SECTION 5.7.1 AND THE BENDS IN THE CABLE SHOWN IN THE DRAWINGS. CERTAINLY THIS DISCREPANCY WAS RECOGNIZED NOT LATER THAN APRIL 20. NOTWITHSTANDING THIS KNOWLEDGE, THE CONTRACTOR FAILED TO SUBMIT THE MATTER TO THE CONTRACTING OFFICER FOR A PERIOD IN EXCESS OF FOUR MONTHS AND IN THE MEANTIME HAD PROCEEDED WITH THE WORK ON THE BASIS THAT THE CABLES WOULD BE ENTRENCHED. AS THE QUOTED LANGUAGE CLEARLY PROVIDES, ANY SUCH RESOLUTION OF A DISCREPANCY BY THE CONTRACTOR IS PERFORMED AT HIS OWN RISK. THE CONTRACT PROVIDED A REASONABLE AND CLEARLY DEFINED PROCEDURE FOR RESOLVING SUCH MATTERS WHICH, HOWEVER, WAS TOTALLY IGNORED BY THE CONTRACTOR. WHERE THE PARTIES HAVE AGREED IN THE TERMS OF THE CONTRACT TO A GIVEN PROCEDURE, THAT PROCEDURE MUST BE REGARDED AS EXCLUSIVE WITHIN ITS INTENDED SCOPE. SEE UNITED STATES V. HOLPUCH CO. (1946), 328 U.S. 234; B 130131,MAY 10, 1957. THE CLAIM FOR ENTRENCHING THE CABLE IS THEREFORE ALSO DENIED.

THE CONTRACTOR HAS ALSO SUBMITTED SIX OTHER CLAIMS UNDER THIS CONTRACT IN VARYING AMOUNTS. CLAIMS FOR OIL SWITCH SERVICING AND REMOVAL, ADDITIONAL LIGHTS ON A THRESHHOLD BAR, STABILIZATION OF POLES WITH CONCRETE, AND THE ERECTION OF A SPECIAL STRUCTURE INVOLVE DISPUTES AS TO THE AMOUNT OF THE EQUITABLE ADJUSTMENT TO BE MADE IN THE CASE OF AN ADMITTED CHANGE. WITHOUT GOING INTO THE MERITS OF THE CLAIMS IT IS SUFFICIENT TO STATE THAT THE AMOUNT OF SUCH ADJUSTMENTS FOR EXTRA WORK IS A QUESTION OF FACT. UNITED STATES V. CALLAHAN WALKER CO. (1942), 317 U.S. 56. WE FIND NOTHING IN THE FILE TENDING TO ESTABLISH THAT THE FINALITY OF THE CONTRACTING OFFICER'S FINDINGS WITH RESPECT TO THESE MATTERS AS CONFIRMED OR MODIFIED ON APPEAL SHOULD BE QUESTIONED AS WITHIN ANY OF THE EXCEPTIONS IN THE ACT OF MAY 11, 1954.

ANOTHER CLAIM, FOR RESTORATION OF OVERRUN PAVEMENT, INVOLVES A DISPUTED QUESTION OF FACT, AND AGAIN NO SHOWING HAS BEEN MADE THAT THE CONTRACTING OFFICER'S DETERMINATION AS AFFIRMED ON APPEAL WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. THE LAST CLAIM UNDER THIS CONTRACT INVOLVES AN ALLEGED CHANGED CONDITION, THE CLAIM FOR WHICH WAS NOT SUBMITTED UNTIL THE WORK HAD ALREADY BEEN COMPLETED AND THE ALLEGED CONDITION COVERED UP. ARTICLE 4 OF THE GENERAL PROVISIONS REQUIRES THE CONTRACTOR TO NOTIFY THE CONTRACTING OFFICER IN WRITING OF SUCH CONDITIONS BEFORE THEY ARE DISTURBED, THUS PERMITTING THE CONTRACTING OFFICER TO INVESTIGATE THEM. THE ARTICLE ALSO PROVIDES FOR DENIAL OF ANY CLAIM THEREUNDER UNLESS THAT PROCEDURE IS FOLLOWED. AS INDICATED ABOVE, FAILURE TO FOLLOW SUCH PROCEDURE IS FATAL TO CONSIDERATION OF THE CLAIM. ACCORDINGLY THIS CLAIM IS ALSO DENIED.

IN CONCLUSION IT SHOULD BE NOTED THAT THE SOLE BASIS FOR DISPUTING CONCLUSIONS OF THE CONTRACTING OFFICER, WHICH ARE AFFIRMED ON APPEAL AFTER AN APPEAL IS ENTERED, ARE THOSE STATED ABOVE. THEY ARE EITHER THAT THE FINDING INVOLVES A QUESTION OF LAW RATHER THAN OF FACT, OR, IF A MATTER OF FACT, IS SHOWN TO BE FRAUDULENT, ARBITRARY, CAPRICIOUS, SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE. YOU HAVE FAILED TO SPECIFY IN ANY INSTANCE WHICH OF THE FINDINGS IN YOUR VIEW COME WITHIN THE STATED EXCEPTIONS. IN APPEALS OF THIS TYPE THE BURDEN IS ON THE CLAIMANT CONTESTING THE DETERMINATIONS TO MAKE A SUBSTANTIAL SHOWING THAT THE FINDINGS ARE NOT FINAL AND CONCLUSIVE BECAUSE THEY COME WITHIN THE CITED EXCEPTIONS. LOWELL O. WEST LUMBER SALES V. UNITED STATES (1959), 270 F.2D 12. WE HAVE EXAMINED THE EXISTING VOLUMINOUS RECORDS FOR POSSIBLE EVIDENCE TO OVERCOME THE FINALITY OF THE CONTRACTING OFFICER'S DETERMINATIONS. HOWEVER, THIS BURDEN IS NOT ONE PROPERLY FOR ASSUMPTION BY OUR OFFICE.