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We are obliged to conclude that Contract No. 14–20_0150–946, Project there is no clear and convincing evi- Number LH 54–581, Santa Rosa School, dence in the record, express or im- Santa Rosa, Arizona, Bureau of Indian plied, showing that the grandfather Affairs. or the decedent promised to com

Denied. pensate the appellant for the care rendered, although appellant may Contracts: Construction and Operation: have expected it.

Actions of Parties—Contracts: ConWe further conclude that the struction and Operation : Drawings and claim for attorney's fees is not a Specifications Contracts: Formation proper claim against the estate of and Validity: Authority to Make the decedent since it is a private

The Board denies a construction conbusiness matter between the appel

tractor's claim for the cost of construct. lant and her attorney. See Estate of ing a dike which was not a contract reJohn J. Akers, 1 IBIA 246, 79 I.D. quirement where it finds: (i) that the 404 (1972).

dike was constructed of excess material We find no merit to any of the

from a sewage lagoon, excavation of

which was a contract requirement; (ii) other contentions raised against the

à reasonable construction of the contract decision of the Judge

after

would permit the contracting officer to rehearing.

direct the placement of excess material NOW, THEREFORE, by virtue

from the lagoon at any place within one

half mile of the site and no part of the of the authority delegated to the

dike was in excess of one-half mile from Board of Indian Appeals by the

the site; (iii) construction of the dike Secretary of the Interior, 43 CFR was not ordered or approved by anyone 4.1, the Judge's decision denying having authority to commit the Governthe claim of Lucille Hall for care

ment; and (iv) the contractor failed to

protest to the contracting officer when in the amount of $9,800 and the

the alleged extra work was performed. claim of Robert Hurly, Esquire, Contracts: Construction and Operation: for attorney's fees is hereby

Actions of Parties Contracts: ConAFFIRMED.

struction and Operation: Changes and This decision is final for the

Extras-Contracts: Disputes and RemDepartment.

edies: Burden of Proof MITCHELL J. SABAGH, Member. A contractor's claim for the cost of re.

pairing a lagoon which was allegedly I CONCUR:

damaged because a dike not required by

the contract channeled floodwaters from DAVID DOANE, Alternate Member.

a rainstorm into the lagoon was denied where the evidence did not establish

Government responsibility for the existAPPEAL OF F. H. ANTRIM

ence of the dike, a portion of the damage CONSTRUCTION CO., INC.

was attributable to an open sewer trench

which was the contractor's responsibility IBCA-914–6–71

and the evidence did not establish that Decided April 20, 1973 the dike was a principal causative factor was within the terms of the contract orders, was $2,176,979.18.2 The

April 20, 1973

6

in flood damage to the lagoon. Under the lagoon. Although the claims arise Permits and Responsibilities clause (Ar

from events occurring in January ticle 12 of Standard Form 23-A, June

and July of 1968, they were first 1964 Edition), the contractor is responsible for the work until completion and

submitted to the contracting officer fipal acceptance.

by letter dated November 17, 1970.* APPEARANCES: Gardiner Johnson,

The first claim is in the amount of Attorney At Law, Johnson & Stanton,

$17,479. Specifically appellant alSan Francisco, California for the Ap- leges that it was required by the pellant; Barry K. Berkson, Department

Government's project inspector to

deposit waste materials exacavated Counsel, Albuquerque, New Mexico for the Government.

from the sewage lagoon along the

northern property line of the projOPINION BY MR. NISSEN ect and there construct a dike not

INTERIOR BOARD OF called for by the specifications. The
CONTRACT APPEALS

second claim states in effect that the

dike so constructed channeled floodOn September 25, 1967, F. II. An

waters from a rainstorm into the trim Construction Company, Inc., lagoon and that appellant incurred contracted with the Bureau of In

costs totaling $35,501 in "removing dian Affairs to construct the Santa

mud, reshaping and compacting.” Rosa School and related facilities

The Contracting Officer denied at Santa Rosa, Arizona. The con

the first claim, finding that the work tract amount, as adjusted by change

and that the dike was not concontractor substantially completed

structed at the direction of the Govthe project on November 15, 1968, and final acceptance was given by • Exhibit 11. There is no explanation in the the Government, effective June 2, record for the delay in submitting the claims.

6 Complaint, dated June 21, 1971. Although 1969.3

the claim as stated in the complaint is limited The construction of a sewage

to construction of the dike, it is clear that

costs claimed ($17,479) include costs of movlagoon was a required part of the ing material from the lagoon to the area at

the drainage ditch in the northwest corner project work. The appellant's two

of the project site (claim letter of Novemclaims are based on alleged extra ber 17, 1970, note 4 supra). The letter states work in connection with the sewage

at page 3 : "Approximately 12,000 cubic yards of excavated material was [sic] placed in the

dike and the area at the drainage ditch." The 1 We have previously dismissed as beyond sum claimed was computed on this yardage. our jurisdiction certain of the contractor's & Complaint, dated June 21, 1971. Appellant claims under this contract. F. H. Antrim Con- also alleged that necessary repairs to the struction Co., Inc., IBCA-882--12-70 (July 28, lagoon were used as an excuse to delay final 1971), 78 I.D. 265, 71-2 BCA par. 8983.

acceptance of the project and that the cost of ? Findings of Fact and Decision, dated these delays (at least two months) should be May 21, 1971, p. 4. The contract included paid as part of the claim (claim letter of Standard Form 23-A (June 1964 Edition) with November 17, 1970 (note 4, supra)). This modifications not pertinent here.

contention has been abandoned since it was Letter of February 24, 1970, Appeal File, not mentioned at the hearing or in appelExhibit 6. References are to the appeal file lant's post hearing brief, which is labeled unless otherwise noted.

"Opening Brief."

ernment.? He characterized the the north property line near to a storm damage as an "Act of God” point in the northwest corner of the and concluded that the damage oc- project site identified on the Key curred because "the contractor Sheet as Property Corner -1.10 Mr. failed to take measure [sic] to pro

Antrim testified that the dike was tect the completed work." (Find- approximately 2,000 feet long, an ings, p. 27.) Accordingly, he also average of 20 feet wide, and 3 feet denied the second claim.

high (Tr. 33, 34, 46). He estimated

that from 5,000 to 6,000 cubic yards Extra Dike Claim

of earth excavated from the sewage The disputed dike 8 is represented lagoon were placed in the dike (see by a red pencil line marked on Sheet note 5, supra). The Key Sheet indiNo. 1 of 16, 'Drawing No. SP-365 cates that the fence referred to (App's. Exh. 1), hereinafter “Key above is 1,630 feet long and the dike

extended an indeterminate number Sheet," by Mr. Antrim and labeled by him "Diversion Dike" (Tr. 32

of feet eastward beyond the corner 34). "The dike extended from a point post (Property Corner -3) where near the southwest corner of the

the fence extended in a northeastsewage lagoon in a northwesterly erly direction. direction, parallel to a fence along

The sewage lagoon is composed of

two cells (Cell No. 1 and Cell No. ? Findings and Decision, page 27. He relied 2), Cell No. 2 being immediately to upon provisions of the specification which

the north of Cell No. 1. The lagoon appear to give the Government an option of having the material disposed of anywhere area was approximately 660 feet by within one-half mile of the site (Findings,

330 feet. The principal portion of page 18). Division 2 of the specifications is entitled "Site Work," Section C of Division 2 is the unexcavated lagoon area was at entitled "Earthwork For Utilities' and Para

elevations 1817 and 1818 while a graph 4 of Section C is entitled “Borrow." Subparagraph 20.4.c. provides :

portion was at elevation 1819 Disposal: Excess material produced by grading and excavation and not usable nor (App's Exh. 2). The contract reneeded in the filling or backfilling shall be

quired that the cells be excavated to disposed of in the nearby vicinity (within 14 mile of the site) as directed."

an elevation of 1805.50.21 Paragraph 6 of Section C (Earthwork For

Although it appears that excavaUtilities) is entitled "Earthwork For Lagoons.” Subparagraph 20.6.b. provides in part: * * Excess cut material, if any, shall be

10 Property Corner -1 is approximately 58 disposed of hy using the material for flatten- feet (50 feet plus the width of the diversion ing the outside slopes of the pond dikes, and ditch) from the corner of the project site increasing the height of the lap dikes or as which is identified as Property Corner -C. The directed by the Contracting Officer. * * * contract required that the diversion ditch be

8 Although the Government objected to this eight feet wide at the bottom from Station terminology (Tr. 39, 40), we will refer to 4+00 north and 12 feet wide at the bottom the structure as a dike since the parties used from Station 5 +00 south (Diversion Ditch this term throughout the hearing. The Gov- Plan & Profile, Sheet No. 11 of 16, Exh. B). ernment disputing that the structure was a 11 These figures would indicate total exca. dike, or functioned as one, refers to it as the vation in excess of 100,000 cubic yards. How"unreal dike" (Closing Brief, p. 1).

ever, it appears that actual excavation was Tr. 41. Mr. Antrim located the eastern por- substantially less since the lagoon banks tion of the dike by a red arrow and circle on sloped inward and there were benches which Sheet No. 4 of 7, Drawing No. Y-947 (App's indicate that the entire lagoon area was not Exh. 2).

excavated to the depth indicated.

April 20, 1973

tion for the lagoon commenced on Neither Mr. Oldham nor Mr. Wil: December 13, 1967, the work was liams could recall the date of this delayed by heavy rains and substan- conversation which appears to have tial excavation was not accom- been approximately mid-January plished until the last week in De- of 1968.13 While Mr. Antrim testicember of 1967 (Tr. 193, 250). Ex- fied that the diversion ditch was the cavated material from the lagoon "first thing put in on the job" and was hauled into the building area that the ditch was completed at the for fill and grading purposes (Tr. time of the rains in July of 1968 112, 193, 256). After the building (Tr. 91) the ditch was not complete area had been brought to approxi- at this time. mately finished grade, appellant's The diversion ditch (notes 10 and construction superintendent, Mr. 12, supra) is not to be confused with Edward Oldham, came to Mr. the “diversion dike.” The diversion Ralph Williams, Government proj- ditch extended for approximately ect inspector, and inquired where

500 feet parallel to the northwestern excess material from the lagoon boundary of the project site and could be placed (Tr. 112, 118, 193, 261, 262). Mr. Williams designated shall be wasted without the authorization of an area in the northwest corner of

the Contracting Officer. Material authorized to

be wasted shall be disposed of as directed by the project site along the east bank the Contracting Officer, and in such manner as

not to obstruct the flow characteristics of any of the diversion ditch between Sta

stream or to impair the efficiency or appearance tion 0+00 and Property Corner of any structure. No excavated material shall

be deposited at any time in a manner that may -1.12 Mr. Oldham indicated that

endanger a partly finished structure by direct “* * * they wanted to widen the

pressure, by overloading banks contiguous to

the operations, or that may be in any other dike, on the perimeter dike, the way detrimental to the completed work.

"c. Selection of Borrow Material. Borrow ditching dike ** *" (Tr. 120).

material shall be selected to meet the require

ments and conditions for the particular em12 Tr. 120, 130, 194, 195, 261-263. Subpara- bankment or backfill for which it is to be used. graph 2G.13. of the specification provides as

Borrow material shall be obtained from follows:

sources selected by the Contractor, subject to “Diversion Ditch and Dike: A diversion the approval of the Contracting Officer. All ditch and dike shall be constructed across the necessary clearing, the grubbing of borrow pits, southern portion of the school site as shown the disposal and burning of the debris thereon the drawings. The transverse section shall from, and satisfactory drainage of the borrow be as shown under Typical Section on Profile pits, shall be considered as incidental operaSheet. The grading excavation, borrow, and tions to the borrow excavation, and shall be fill compaction shall conform to the same performed by the Contractor at no additional headings under Site Grading of this Division." cost to the Government.”

The heading “Site Grading" is Section "D" 13 Tr. 131, 132, 196. Daily Construction Re. under Division 2, "Site Work", of the specifi- ports written by Mr. Williams, not all of cation and Paragraph 3 of Section D is en- which are in evidence, reflect that material titled "Excavation and Borrow." Subpara- from the lagoon was being placed at the buildgraphs 2D.3.0. and c. provide as follows:

ing areas as of January 5, 1968 (Tr. 256). The “b. Utilization of Excavated Materials. All first Report which indicates any other disposi. suitable material removed from the excavations tion of earth from the lagoons is that of Janushall be used, insofar as practicable, in the ary 22, 1968, which states in part : "Excavatformation of embankments, subgrades, slopes, ing sewerage Lagoons. Wasting excess dirt and for such other purposes as directed by the from lagoons on downstream side of Diversion Contracting Officer. No excavated material Ditch Dike." [sic] (Exh. 7).

then curved to the southeast (App's testified that after he and Mr. OldExh. 1). The total length of the di- ham "*** looked the area over and version ditch was approximately decided that it wouldn't have any 4,126 feet, not all of which was on effect on anything, we decided it the project site (App's Exh. 1). Its would be all right to waste dirt in purpose was to intercept water from that area.” 15 The only condition the west and south and drain it away placed upon disposal of earth along from the site to the east and north the fence was that the material not (Tr. 171, 172). The contract re- be higher than the desert vegetation quired that an embankment of com- which was approximately 18 to 36 pacted fill four feet wide at the top inches in height (Tr. 204, 264). The having a slope of 4:1 on the side dike, according to Mr. Williams, away from the ditch be placed along was constructed during the followthe downstream (eastern and north- ing week or ten days and was comern) sides of the ditch (Diversion pleted by the end of January 1968 Ditch Plan and Profile, note 10, (Tr. 205, 206, 209). supra). The general slope of the Mr. Oldham denied requesting project site was to the east (Tr. 26, permission to build a dike or road 151; Existing Site Plan, Govt's (Tr. 118). However, he stated “Our Exh. A). However, to the northwest only request was that we wanted a of the project site was an area of place to put excess material which lower elevation identified as a we had to get rid of” (Tr. 118). He "wash" and the break point as to admitted that he did not object to whether the flow in the diversion placing the material on the dike ditch was to the north or the south

because

66* * * I had to have somewas Station 0+00, which is approx- place to put the material” (Tr. 135). imately 230 feet to the south of He testified that the dike had been Property Corner -1.

completed before they were Mr. Williams testified that the quested to place material along the route used by appellant's equipment diversion ditch (Tr. 130, 131). We in hauling earth from the lagoon find that the testimony of Mr. Wilto the east bank of the diversion liams that the dike had not been ditch was along the north fence line

constructed at the time appellant (Tr. 196, 197). He stated that at

was placing earth excavated from this time (mid-January 1968) the

the lagoon along the east bank of diversion dike had not been constructed. He asserted that Mr. Old

wanted to just plate this area up in here to

have something to run his equipment on, to ham inquired as to whether it would

stay out of that dust." (Tr. 197.) be all right to place waste material 15 Tr. 199. When asked on cross examination

what he meant by "it wouldn't effect (sic) along the north fence line.14 He

anything," he replied, “Well, the dike, the so

called dike along the fence at the north prop14 He stated that the desert soll "powders erty line was running in the same direction up" where traveled by heavy equipment and that the water would run, and it wouldn't "But in order to facilitate the moving of this divert water from any direction as far as I dirt to a waste area up in here, he [Oldbam] could see." (Tr. 279.)

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