constitute such notice, the principle appellant seeks to apply is not applicable under the circumstances present here. The record reflects that the diversion dike was constructed during the last week or ten days of January 1968. Mr. Antrim first learned of the alleged requirement for the dike on or about January 21, 1968. He did nothing even though he was aware of the fact that changes required the contracting officer's approval. Mr. Oldham did not protest the requirement to build the dike because he stated that he had to have some place to put the material. We have held that a contractor's failure to follow known and established procedures for seeking review of a subordinate's decision or actions allegedly requiring the performance of extra work which failure precludes the Government from exercising options which may have the effect of avoiding the costs claimed is a sufficient basis for denial of the claim.27 We conclude show any reason for failing to protest to the contracting officer what it now alleges to be a requirement for extra work imposed by the project inspector. It follows that the extra dike claim must be and hereby is denied. Lagoon Damage Appellant alleges that as a result and consequence of the dike constructed at the order of the Government, floodwaters were channeled into the lagoon necessitating substantial expenditures for the removal of mud and in reshaping and compacting the lagoon dikes (Complaint, pars. 11 and 12). Although the dike was not a requirement of the contract, excavation of the lagoon and disposition of excess material in a manner directed by the contracting officer were contract requirements. We have denied the extra dike claim for the reason, among others, that appellant had not shown that work beyond the re that the cited principle is applicable quirements of the contract had been here. For the reasons set forth above, we hold that appellant has failed to establish that work above and beyond the requirements of the contract was performed and that even if work not required by the contract was performed, appellant has failed to establish that it was ordered or approved by anyone having authority to commit the Government. In addition, appellant has failed to 27 John H. Moon & Sons, IBCA-815-12-69 (July 31, 1972), 79 I.D. 465, 72-2 BCA par. 9601. accomplished or if accomplished, that such work was ordered or approved by anyone having authority to bind the Government. Nevertheless, we will review the evidence to ascertain the factual basis for this claim. The record reflects that an inch of rain fell on the project site on July 20, 1968, and that an additional one inch fell on July 22, 1968 (Tr. 124; Daily Construction Reports, dated July 20 and 22, 1968, Exhs. 16 and 17). Mr. Williams testified that the rain on July 20 fell April 20, 1973 in 30 or 40 minutes.2 The Daily Construction Report for July 22, 1968 (Exh. 17), contains the following: "Approximately one (1) inch of rain fell late today and considerable damage was done to base course in the streets." Mr. Oldham testified that he was in the fire station (Building I-4) at the time of the rain on July 20 and that he could see water flowing along the south side of the diversion dike and into the lagoon (Tr. 124, 125, 136). He stated that water was going over the dikes around the lagoon. The water caused damage to the lagoon which had to be repaired before the work could be accepted (Tr. 126; photos, Exh. 20). The fire station is approximately 700 feet from the eastern terminus of the diversion dike (Tr. 136; App's Exh. 1). Mr. Williams testified that he was in the fire station with Mr. Oldham at the time of the rain of July 20, 1968 (Tr. 234). He stated that the desert vegetation and the heavy rain obscured the view, that he could not see the diversion dike from the fire station and that he did not think it possible for anyone else to do so (Tr. 236-239). The evidence is in conflict as to the extent of site grading which had been completed at the time of these rains. A memorandum, dated August 7, 1968 (Exh. 18), written by Mr. Williams states that "sur 28 Tr. 235. In this respect, he may have confused the rain of July 22, 1968. Writing on the reverse of a photo taken by Mr. Williams on July 22, 1968 (Exh. 19) states that approximately one inch of rain fell today in about 40 minutes. face flood water ran into the lagoons" and contains the following: If the site grading was even roughed out per site grading plans very little or no water could enter the streets and no water could enter the lagoons. The damage incurred in streets and lagoons could have been avoided if the grading had been completed. Since the Daily Construction Report of July 22, 1968, quoted above, states that the rain damaged the base course, we have considerable doubts as to the accuracy of this memorandum insofar as it implies that damage to streets was caused by failure to complete the grading. Mr. Antrim testified that the site grading was done, the curb and gut ter was in and most of the base course was down at the time of the rains in July of 1968 (Tr. 69). He asserted that the dikes or benches around Cell No. 1 of the lagoon were constructed according to plan and denied that flooding of the lagoon was caused by failure to complete the work (Tr. 70, 71). At the hearing, Mr. Williams testified that site grading in the immediate vicinity of the lagoon had not been completed as of July 20, 1968 (Tr. 223). We do not consider it necessary to resolve any controversy as to the extent of completion of site grading on the project as a whole, since it is undisputed that the sewer trench was open from Manhole No. L-1 northward for a distance of approximately 375 feet (Tr. 223-225; App's Exh. 2). Manhole No. L-1 is located approximately 100 feet south of the southernmost portion of the lagoon. Since the trench had not been closed, it is obvious that grading around the lagoon had not been completed. Mr. Oldham observed water flowing through the trench and into the lagoon at the time of the rains (Tr. 143). Mr. Antrim admitted that the open sewer trench was a contributing factor to floodwaters entering the lagoon (Tr. 92, 105, 106). He asserted that water came over the top of the lagoon dikes (Tr. 88, 105, 106, 303). However, he was not at the site at the time of the rains and acknowledged that his contention the diversion dike channeled water into the lagoons was based on his own logic (Tr. 90). When asked how long the trench had been open, Mr. Antrim replied that it had been open for some time. He stated that this had been the subject of a dispute with the plumbing con tractor.29 Mr. Williams testified that the sewer trench had been open for several weeks at the time of the rains (Tr. 240). However, he indicated that the water level in the cells of the lagoon did not exceed three feet and stated that water coming into the lagoon through the 29 Tr. 106. The claim letter of November 17, 1970 (note 4, supra) states in part: "I told Arguelles [Bureau engineer] at the time that it was caused either by the dike or by the open sewer trench. Arguelles apparently discussed this with Williams who took pictures and documented the episode so as to keep himself blameless. "Since the sewer trench had been open an unnecessarily long time, I thought I had an action against the sewer contractor. ***" The letter states that the litigation was resolved in favor of the sewer contractor because of the testimony of Mr. Williams. trench could not have damaged the lagoon above the trench line (Tr. 286, 287). The bulk of the damage was above the water line in the lagoon (Tr. 294). He asserted that surface waters which ran into the lagoon came from off of the site to the west (see note 17, supra) and that erosion damage to the lagoon was principally along the west bank (Tr. 288). Photos taken on July 22 and August 7, 1968, confirm that erosion damage to the lagoon occurred along the west bank (Exhs. 19 & 20). The Board finds that erosion damage to the lagoon was caused principally by water which overflowed the lagoon dikes.30 However, we accept Mr. Antrim's admissions at the hearing and in the claim letter that the open sewer trench was a contributing factor to lagoon damage. We note that the lagoon damage claim is based in part upon removal of earth washed into the lagoon and there can be no doubt that the open sewer trench was a substantial factor in conducting material into the lagoon (Tr. 296). Remaining for consideration is whether appellant has established its contention that the diversion dike had the effect of channeling water into the lagoon. The evidence on this issue is confused and contradictory. As noted previously, the 30 Appellant introduced photos taken in April of 1970 (App's Exhs. 7, 8 and 9), for the purpose of showing that erosion along the west banks of the lagoon had occurred since the job was completed and rebutting the contention that failure to complete the work caused the damage. We note that the weather conditions since the work was completed are not shown. April 20, 1973 lagoon was to the northeast of the buildings and the general slope of the site was to the east. Mr. Walter Parks, a Bureau engineer, testifying with reference to contour lines on the Existing Site Plan (Govt's Exh. A), stated the water would flow perpendicular to the contours and that where the contour bends away from dike, the water would flow away from the dike (Tr. 169). He asserted that the water would not be any deeper against the dike than it would be at points south of the dike. He was of the opinion that the flow would be parallel and away from the dike and would not affect the flow of water along the south side of the dike (Tr. 167, 170). This is consistent with Mr. Williams' opinion (note 15, supra). We have previously referred to the fact that the break point where water flow to the north in the diversion ditch was at Station 0+00 which was about 230 feet to the south of Property Corner -1. The Existing Site Plan would appear to indicate that the northwest corner (Property Corner -C) was the highest elevation on the site. However, Mr. Parks testified that it (Station 0+00) was a high point and conceded that some water drained to the north beyond the boundary fence (Tr. 172). Although this may have affected a small portion of the total site, there would appear to be no room for doubt that the diversion dike would intercept some of such waters and channel them to the southeast. We have accepted Mr. Oldham's testimony that the off-site drainage to the north of the dike was to the north and east (note 17, supra). The break point as to where water flowed to the east in this area is not shown. The difficulty we have with Mr. Parks' testimony is that the slope of the site was to the east and the dike extended in a southeasterly direction. We conclude that in addition to the water referred to above which would otherwise have drained to the north, the dike did have the effect of channeling water, which would otherwise have flowed off of the site beyond the north fence line to the east, in a southeasterly direction. Assuming that the diversion ditch served its intended purpose and there is no evidence that it did not, this water would be limited to that which fell on the site to the north and east of the ditch (Tr. 108). After reaching the eastern terminus of the dike, the natural flow of the water would be to the northeast along the west bank of the lagoon. It would, of course, appear to be clear that some water would have flowed off of the site and against the lagoon banks in the absence of the dike. This is consistent with Mr. Williams' testimony that water which overflowed the lagoon banks came from off of the site to the west. We find that the dike was to the southwest of the lagoon and could. not have channeled floodwaters directly into the lagoon. We further find that although the dike did have a channeling and concentrating ef fect as to on-site surface waters from the south and west, the dike has not been shown to be a major factor in the concentration of water in the lagoon area and resulting damage to the lagoon. There is evidence, which we accept as accurate, that water was channeled into the lagoon by the lagoon access road.31 Article 12 of the General Provisions (Permits and Responsibilities) provides in part that the contractor shall be responsible for all materials delivered and work performed until completion and acceptance of the entire construction work. Decision The evidence establishes and appellant has admitted that the open sewer trench was a factor in channeling floodwater into the lagoon. Whatever may be the responsibility for the open sewer trench as between appellant and its subcontractor, it is clear that as between appellant and the Government the open trench was appellant's responsibility. While we have found that the dike had a concentrating and channeling effect as to on-site surface waters, the evidence does not estab 31 Mr. Williams testified “* * this access road had been build up and this water hit this and followed the line of least resistance right down this and into the open sewer trench and into the lagoons." (Tr. 235.) Our only reservation as to this testimony is that since we have found that water overflowed the lagoon banks, it is likely that the sewer trench was inadequate to handle the flow. Mr. Williams testified that "*** this trench filled with water and overspilled and here's where the bulk of the damage was done, here." (Tr. 296.) lish that the dike was a major factor in the flood damage to the lagoon. Even if our finding in this respect had been otherwise, appellant has not shown that construction of the dike was ordered or approved by anyone having authority to commit the Government. It follows that appellant has not established that construction of the dike was the responsibility of the Government. It is well settled that a contractor seeking to shift to the Government the risk of loss placed upon it by the Permits and Responsibilities clause must prove by a preponderance of the evidence that the loss was attributable to fault of the Government.32 The most that could be said here is that the dike had some indeterminate effect in concentrating floodwaters in the lagoon area. Appellant has failed to demonstrate that damage to the lagoon was attributable to fault of the Government. |