it was not improper for the board to decide a changed condition dispute on a theory not presented either to the contracting officer or to the board
How later courts described this case
- it was not improper for the board to decide a changed condition dispute on a theory not presented either to the contracting officer or to the board
Written by the judges who cited it.
The opinion
COLLINS, Judge
(concurring):
I agree completely with the disposition of this case by the court. There is one point, however, which I do not think the commissioner’s opinion makes sufficiently clear and, lest there be any misunderstanding, regarding which I would like to express my views.
In my opinion, plaintiff is entirely correct in arguing that the board improperly decided the case under the changed conditions clause of the contract. The contractor was fully informed by the contract to expect quantities of rock, and special pay was provided for the removal thereof. The Government was, of course, equally cognizant of the situation. There was no change in the conditions shown in the contract specifications or, for all the board knew, in those normally inhering in the type of prior-fill excavation involved in this contract. The contractor readily admits that he was anticipating the necessity of rock removal. The board’s conclusion that the rock-pay provision was not intended to apply, as written, in the instant circumstances is unsupported. Accordingly, there was no changed condition.
Nor was there -any change in the contract, since the inspector’s acquiescence in plaintiff’s planned treatment of the excavations of the ponds in question could not, as the court holds, change the con *789 tract provisions or requirements. There was no modification in the method of, or pay for, rock removal.
What was involved was rather a factual determination of the amount of rock removed and the amount of pay plaintiff was to receive therefor under the contract provisions. The board clearly had jurisdiction to initially decide this question. The fact findings regarding quantum made under the erroneous application of the changed conditions clause are common to a measurement of damages under the rock-pay provision. For these reasons, and since plaintiff has not demonstrated his right to recover more than the board allowed, I concur in the affirmation of the board’s decision.
CONCLUSION OF LAW
Upon full review of the administrative record, it is concluded that the decision of the Interior Board of Contract Appeals is supported by substantial evidence, is not arbitrary or capricious, and is correct as a matter of law; that plaintiff’s motion for summary judgment should be denied; that defendant’s cross-motion for summary judgment should be allowed; and that plaintiff’s petition should be dismissed.