December 27, 1971 the provisions of this Act" as meaning "Lands *** purchased under the provisions of the laws set forth in this Act." We believe this conclusion comports with the concept of "whole statute" interpretation.. SUTHERLAND, STATUTORY CONSTRUCTION, § 4703 (3d ed. 1943). We do not regard the provision of section 1, saving valid and subsisting public land claims, entries, filings, or appropriations as militating against our conclusion. That provision preserves desert land entries,. homestead entries, scrip locations, etc., on the public lands added to the national forest. Our view of the case at bar is further buttressed by the opinion of the Solicitor of the Department of Agriculture, No. 5016, of July 8, 1944, which reaches the same result. Moreover, where contemporaneous and practical interpretation has stood unchallenged for a considerable length of time, it will be regarded as of great importance in arriving at the proper construction of a statute. United States v. State Bank of North Carolina, 31 U.S. (6 Pet.) 12 (1832). Cf. SUTHERLAND, STATUTORY CONSTRUCTION, § 5104 (3d ed. 1943). It follows, therefore, that mining claims on the purchased lands within the area described in the Kaniksu Act may not be declared null and void ab initio for the reasons stated in the Oregon state office decision. Such mining claims, located after acquisition of the lands by the United States and after the date of the Kaniksu Act, must be afforded due process, including proper notice and an opportunity for hearing before being subject to cancellation. Cf. Mrs. Marion E. Beresford, A-30015 (April 6, 1964). Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior (211 DM 13.5; 35 F.R. 12081), the decison appealed from is vacated and the case is remanded to the Bureau of Land Management for further appropriate action not inconsistent herewith. WE CONCUR: EDWARD W. STUEBING, Member. NEWTON FRISHBERG, Chairman. FREDERICK FISHMAN, Member.. APPEAL OF S. S. MULLEN CONSTRUCTION, INC. IBCA-860-7-70 Decided December 28, 1971 Contracts: Construction and Operation: Changed Conditions-Contracts: Disputes and Remedies: Burden of Proof-Contracts: Disputes and Remedies: Substantial Evidence-Rules of Practice: Appeals: Burden of Proof A claim for a changed condition will be denied when the contractor fails to present adequate evidence as to what the field conditions were, and fails to prove that the field conditions differed materially from conditions shown in the contract documents. Contracts: Construction and Operation: Changed Conditions—Contracts: Disputes and Remedies: Burden of Proof-Contracts: Disputes and Remedies: Substantial Evidence-Rules of Practice: Appeals: Burden of Proof A changed condition claim will be denied where the contractor fails to show significant error in the data contained in the contract documents. Contracts: Construction and Operation: Changed Conditions A claim for a changed condition will be denied when the evidence shows that the overwet condition of borrow material intended for use as compacted earthdam fill was most likely the result of the use of too much water in wetting the borrow material prior to excavation. Contracts: Construction and Operation: Changed Conditions A claim for a changed condition based upon overwet borrow material will be denied when the contract expressly recognizes the possibility of overwetting the material and states that the contractor must cover the contingent risk of overwet material in his unit bid prices. INTERIOR BOARD OF CONTRACT APPEALS This appeal arises out of a contract for the construction of the Joes Valley Dam, part of the Emery County Project, Utah, of the Bureau of Reclamation. Appellant was the successful bidder on the contract with an estimated value of $3,562,260 which was awarded on May 10, 1963. The specific claim at issue, valued at $500,000, arises from the difficulties experienced by appellant in the course of construction because the borrow material for the impervious core of the earth fill dam was generally wetter than optimum for compaction in the dam. The contract called for Zone 1 embankment, i.e., the impervious core, to be constructed of compacted fill which was to be secured from the "Lowry borrow area," a site some 6,000 feet upstream from the dam. December 28, 1971 The contract describes Zone 1 material as consisting of a mixture of clay, silt, sand, and gravel from a uniform cutting from the full height of the designated face of the borrow pit excavation, and free of cobbles or rock fragments greater than five inches in maximum dimension. There is no dispute over these characteristics of the borrow. The dispute germinates in the requirement of specification paragraph 57c., which specified moisture pre-conditioning of the fill 30 days in advance of excavation operations.1 There is little doubt but that the borrow material for Zone 1 embankment was generally overwet for optimum compaction. Appellant's case is that this condition resulted from the borrow pit area being predominently a lean clay soil, with greater water holding properties, rather than a more predominately sandy soil shown in the contract specifications, and on which the pre-excavation irrigation was based.. In short, appellant urges a first category changed condition under the Changed Conditions clause.2 1 Because of its importance in the case paragraph 57c. is quoted here in full: "57c. Moisture and drainage. The moisture content of the Zones 1 and 2 embankment materials prior to and during compaction shall be in accordance with applicable paragraphs for placing the embankment. As far as practicable, the earthfill, Zone 1 material shall be conditioned in the borrow pits before excavation. If required, moisture shall be introduced into the borrow pits for the earthfill, Zone 1 material by irrigation, at least 30 days in advance of excavation operations. When moisture is introduced into the borrow pits for earthfill material prior to excavation, care shall be exercised to moisten the material uniformly, avoiding both excessive runoff and accumulation of water in depressions. If at any location in the borrow pits for earthfill material, before or during excavation operations, there is excessive moisture, as determined by the contracting officer, steps shall be taken to reduce the moisture by selective excavation to secure the drier materials; by excavating and placing in temporary stockpiles material containing excess moisture; by excavating drainage ditches; by allowing adequate additional time for curing or drying; or by any other approved means. "Borrow pits in the Seely borrow area will not require preconditioning by irrigation. Moisture as required shall be added to the materials on the embankment or at the option of the contractor may be added at the separation plant. "The contractor shall be entitled to no additional allowance above the unit prices bid in the schedule on account of the requirement for stockpiling and rehandling excavated materials which have been deposited temporarily in stockpiles; delays or increased costs. due to stockpiling; poor trafficability on the borrow area, the haul roads, or the embankment; reduced efficiency of the equipment the contractor elects to use; or on account of any other operations or difficulties caused by overly wet materials. "To avoid the formation of pools in borrow pits during the excavation operations and in borrow pits above elevation 6910 after the excavation operations are completed, drainage ditches from borrow pits to the nearest outlets shall be excavated by the contractor where, in the opinion of the contracting officer, such drainage ditches are necessary. "No direct payment will be made for irrigation or unwatering of borrow areas, for addition of moisture at separation plant, for any other operations necessary to condition the material properly, and the entire cost of such irrigation, addition of moisture, excavation of drainage ditches, or other operations, shall be included in the unit prices per cubic yard bid in the schedule for excavation in borrow areas." 2 "4. CHANGED CONDITIONS "The Contractor shall promptly, and before such conditions are disturbed, notify the Contracting Officer in writing of: (a) subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (b) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily The Government defends along several lines: One, the claim is defeated by lack of notice under the Changed Conditions clause; two, the contract places the risk of overwet materials on the contractor; three, the facts do not show a changed condition; and four, the overwet condition was the fault of appellant's subcontractor for borrow pit irrigation. The record in this case compels the Board to reach the :same conclusions. Lack of Notice The first written notice to the Bureau that appellant considered conditions in the Lowry borrow area to be something different than represented by the contract consists of a brief letter dated November 1, 1965, which stated that the soil characteristics differed substantially from pre-bid information. The Government responded immediately, asking a meeting at the site of work and pointing out that stoplogs had been installed in the diversion tunnel on November 3, 1965, and that inundation of some of the borrow area was imminent.* Appellant did not respond to the Government's request. 7 6 5 The evidence further shows that all Zone 1 embankment, which included 900,000 cubic yard of fill from the Lowry area, was completed on October 18, 1965. All dam embankment was completed on October 27, 1965. Thus, no written notice was given until almost two weeks had elapsed from final excavation in the disputed borrow area, and the soil incorporated into the dam structure. Although the Government at this point could have itself investigated the remaining soil in situ in Lowry, it had no way of investigating the soil which had been excavated, transported to the dam, and compacted, in order to ascertain if the field conditions in fact differed from the contract indications. It is the in situ characteristics of the soil used in the dam which is in issue in this case, and not the characteristics of soil not excavated and not used in embankment. In addition, there is no evidence that the Bureau had actual notice that the soil characteristics were not as shown in the contract. Bureau encountered and generally recognized as inhering in work of the character provided for in this contract. The Contracting Officer shall promptly investigate the conditions, and if he finds that such conditions do so materially differ and cause an increase or decrease in the 'Contractor's cost of, or the time required for, performance of this contract, an equitable adjustment shall be made and the contract modified in writing accordingly. Any claim of the Contractor for adjustment hereunder shall not be allowed unless he has given notice as above required; or unless the Contracting Officer grants a further period of time before the date of final payment under the contract. If the parties fail to agree upon the adjustment to be made, the dispute shall be determined as provided in Clause 6 of these General Provisions." 3 Appeal file, Exhibit 16. Appeal file, Exhibit 17. 5 Tr. 97. 6 Tr. 45. 7 Tr. 91. December 28, 1971 employees knew that the soil was overwet as early as April 1965, and indeed, had alerted appellant to this condition. It is now where alleged or shown that the Bureau's knowledge of the fact that the soil was overwet necessarily imparted any knowledge that the soil characteristics were different than shown. The overwet material had previously been irrigated by appellant's subcontractor and it was just as meaningful to ascribe the overwet condition to such irrigation. Appellant's conduct may also have avoided a timely investigation. Appellant's Vice President, Mr. Bisordi, made a pre-bid examination and looked into three or four open test pits. Appellant took a soil sample in June 1964, which was analyzed by Woodward, Clyde, and Sherard, soil engineers in Denver, for moisture content and compaction characteristics.10 Some pre-wetted borrow was excavated in the fall of 1964, and apparently was satisfactory for compaction.11 When the Government's Chief Inspector, Mr. Harold Deming, suggested to Mr. Bisordi, at the end of May 1965, that appellant try some experimental irrigation in an attempt to meet the problem of overwet materials, Mr. Bisordi responded that the irrigation subcontractor knew what it was doing.12 In August 1965, because of its concern with the overwet condition,13 appellant secured the services of Mr. George G. Yamane, a qualified soils engineer, whose report to appellant dated August 17, first referred to "lean clay." Mr. Yamane investigated and reported only on the overwet condition resulting from irrigation. Apparently the question of different soil characteristics was not even put to him. The above evidence indicates that appellant itself did not consider the soil in the Lowry borrow area to be significantly different from that :shown in the contract until it made this claim for the overwet material. If such is the case, it is a priori impossible to charge the Bureau with any actual knowledge of a changed condition prior to November 1, 1965. Accordingly, we believe that the evidence in this case shows that the Government did not receive notice of a changed condition until receipt of the letter of November 1, 1965, from appellant despite appellant's knowledge since May 1965, of the overwet condition. This letter arrived too late for the Government to make any meaningful in situ examination of the borrow material used in construction of the dam. Al 8 Tr. 440-441. 9 Tr. 57. 10 Government Exhibit 8, Item 16. This sample is classified as "sandy clay." 11 Tr. 11, 31, 437-438. 13 Tr. 440. 13 Tr. 82-83. |