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constitute such notice, the principle show any reason for failing to proappellant seeks to apply is not ap- test to the contracting officer what it plicable under the circumstances now alleges to be a requirement for present here. The record reflects extra work imposed by the project that the diversion dike was con- inspector. It follows that the extra structed during the last week or ten dike claim must be and hereby is days of January 1968. Mr. Antrim denied. first learned of the alleged require
Lagoon Damage ment for the dike on or about January 21, 1968. He did nothing even Appellant alleges that as a result though he was aware of the fact and consequence of the dike conthat changes required the contract
structed at the order of the Governing officer's approval. Mr. Oldham ment, floodwaters were channeled did not protest the requirement to
into the lagoon necessitating subbuild the dike because he stated that
stantial expenditures for the rehe had to have some place to put the
moval of mud and in reshaping and material. We have held that a con
compacting the lagoon dikes (Comtractor's failure to follow known plaint, pars. 11 and 12). Although and established procedures for seek
the dike was not a requirement of ing review of a subordinate's deci
the contract, excavation of the lasion or actions allegedly requiring goon and disposition of excess mathe performance of extra work terial in a manner directed by the which failure precludes the Govern- contracting officer were contract rement from exercising options which quirements. We have denied the
extra dike claim for the reason, may have the effect of avoiding the costs claimed is a sufficient basis for
among others, that appellant had denial of the claim.27 We conclude
not shown that work beyond the rethat the cited principle is applicable quirements of the contract had been here.
accomplished or if accomplished, For the reasons set forth above,
that such work was ordered or apwe hold that appellant has failed proved by anyone having authority to establish that work above and
to bind the Government. Neverthebeyond the requirements of the con
less, we will review the evidence to tract was performed and that even
ascertain the factual basis for this
claim. if work not required by the contract
The record reflects that an inch was performed, appellant has failed to establish that it was ordered or
of rain fell on the project site on approved by anyone having author- July 20, 1968, and that an addiity to commit the Government. In
tional one inch fell on July 22, 1968 addition, appellant has failed to
(Tr. 124; Daily Construction Re
ports, dated July 20 and 22, 1968, 27 John H. Moon & Sons, IBCA-815-12-69 Exhs. 16 and 17). Mr. Williams (July 31, 1972), 79 I.D. 465, 72-2 BCA par.
testified that the rain on July 20 fell
April 20, 1973
in 30 or 40 minutes.28 The Daily face flood water ran into the laConstruction Report for July 22, goons" and contains the following: 1968 (Exh. 17), contains the fol
If the site grading was even roughed lowing: “Approximately one (1) out per site grading plans very little or inch of rain fell late today and con
no water could enter the streets and no siderable damage was done to base
water could enter the lagoons. The dam
age incurred in streets and lagoons could course in the streets."
have been avoided if the grading had been Mr. Oldham testified that he was
completed. in the fire station (Building 1-4) at
Since the Daily Construction Rethe time of the rain on July 20 and that he could see water flowing port of July 22, 1968, quoted above, along the south side of the diversion dike and into the lagoon (Tr. 124, doubts as to the accuracy of this
base course, we have considerable 125, 136). He stated that water was
memorandum insofar as it implies going over the dikes around the la
that damage to streets was caused goon. The water caused damage to the lagoon which had to be repaired by failure to complete the grading.
Mr. Antrim testified that the site before the work could be accepted grading was done, the curb and gut(Tr. 126; photos, Exh. 20).
ter was in and most of the base The fire station is approximately 700 feet from the eastern terminus
course was down at the time of the of the diversion dike (Tr. 136;
rains in July of 1968 (Tr. 69). He
asserted that the dikes or benches App's Exh. 1). Mr. Williams testified that he was in the fire station
around Cell No. 1 of the lagoon were with Mr. Oldham at the time of the
constructed according to plan and
denied that flooding of the lagoon rain of July 20, 1968 (Tr. 234). He stated that the desert vegetation and
was caused by failure to complete the heavy rain obscured the view,
the work (Tr. 70, 71). At the hearthat he could not see the diversion ing, Mr. Williams testified that site dike from the fire station and that grading in the immediate vicinity he did not think it possible for any- pleted as of July 20, 1968 (Tr. 223).
of the lagoon had not been comone else to do so (Tr. 236-239).
We do not consider it necessary The evidence is in conflict as to
to resolve any controversy as to the the extent of site grading which had been completed at the time of
extent of completion of site grading these rains. A memorandum, dated
on the project as a whole, since it is August 7, 1968 (Exh. 18), written undisputed that the sewer trench by Mr. Williams states that "sur
was open from Manhole No. L-1
northward for a distance of approx» Tr. 235. In this respect, he may have con- imately 375 feet (Tr. 223-225; App's
28 fused the rain of July 22, 1968. Writing on the
Exh. 2). Manhole No. L-1 is loreverse of a photo taken by Mr. Williams on July 22, 1968 (Exh. 19) states that approxi- cated approximately 100 feet south mately one inch of rain fell today in about 40 minutes.
of the southernmost portion of the lagoon. Since the trench had not trench could not have damaged the been closed, it is obvious that grad- lagoon above the trench line (Tr. ing around the lagoon had not been 286, 287). The bulk of the damage completed.
was above the water line in the Mr. Oldham observed water flow. lagoon (Tr. 294). He asserted that ing through the trench and into the surface waters which ran into the lagoon at the time of the rains (Tr. lagoon came from off of the site to 143). Mr. Antrim admitted that the the west (see note 17, supra) and open sewer trench was a contrib- that erosion damage to the lagoon uting factor to floodwaters entering was principally along the west bank the lagoon (Tr. 92, 105, 106). He (Tr. 288). Photos taken on July 22 asserted that water came over the and August 7, 1968, confirm that top of the lagoon dikes (Tr. 88, 105, erosion damage to the lagoon oc106, 303). However, he was not at curred along the west bank (Exhs. the site at the time of the rains and 19 & 20). The Board finds that eroacknowledged that his contention sion damage to the lagoon was the diversion dike channeled water caused principally by water which into the lagoons was based on his overflowed the lagoon dikes.30 Howown logic (Tr. 90). When asked ever, we accept Mr. Antrim's admishow long the trench had been open, sions at the hearing and in the claim Mr. Antrim replied that it had been letter that the open sewer trench open for some time. He stated that was a contributing factor to lagoon this had been the subject of a dis- damage. We note that the lagoon pute with the plumbing con- damage claim is based in part upon tractor.29
removal of earth washed into the Mr. Williams testified that the lagoon and there can be no doubt sewer trench had been open for that the open sewer trench was a several weeks at the time of the substantial factor in conducting rains (Tr. 240). However, he indi- material into the lagoon (Tr. 296). cated that the water level in the
Remaining for consideration is cells of the lagoon did not exceed whether appellant has established three feet and stated that water its contention that the diversion coming into the lagoon through the dike had the effect of channeling
water into the lagoon. The evidence 29 Tr. 106. The claim letter of November 17, 1970 (note 4, supra) states in part:
on this issue is confused and con“I told Arguelles (Bureau engineer) at the
tradictory. As noted previously, the time that it was caused either by the dike or by the open sewer trench. Arguelles apparently discussed this with Williams who took pic. 20 Appellant
ced photos taken tures and documented the episode so
April of 1970 (App's Exhs. 7, 8 and 9), for keep himself blameless.
the purpose of showing that erosion along the "Since the sewer trench had been open an west banks of the lagoon had occurred since unnecessarily long time, I thought I had an the job was completed and rebutting the conaction against the sewer contractor. *" tention that failure to complete the work The letter states that the litigation was caused the damage. We note that the weather resolved in favor of the sewer contractor conditions since the work was completed are because of the testimony of Mr. Williams.
April 20, 1973
lagoon was to the northeast of the have accepted Mr. Oldham's testibuildings and the general slope of mony that the off-site drainage to the site was to the east. Mr. Walter the north of the dike was to the Parks, a Bureau engineer, testify- north and east (note 17, supra). The ing with reference to contour lines break point as to where water flowed on the Existing Site Plan (Govt's to the east in this area is not shown. Exh. A), stated the water would The difficulty we have with Mr. flow perpendicular to the contours Parks' testimony is that the slope of and that where the contour bends the site was to the east and the dike away from dike, the water would extended in a southeasterly direcflow away from the dike (Tr. 169). tion. We conclude that in addition He asserted that the water would to the water referred to above which not be any deeper against the dike would otherwise have drained to the than it would be at points south of north, the dike did have the effect the dike. He was of the opinion that of channeling water, which would the flow would be parallel and away otherwise have flowed off of the site from the dike and would not affect beyond the north fence line to the the flow of water along the south east, in a southeasterly direction. side of the dike (Tr. 167, 170). This Assuming that the diversion ditch is consistent with Mr. Williams' served its intended purpose and opinion (note 15, supra).
there is no evidence that it did not, We have previously referred to
this water would be limited to that the fact that the break point where which fell on the site to the north water flow to the north in the diver- and east of the ditch (Tr. 108). sion ditch was at Station 0+00 After reaching the eastern terminus which was about 230 feet to the of the dike, the natural flow of the south of Property Corner -1. The water would be to the northeast Existing Site Plan would appear to along the west bank of the lagoon. indicate that the northwest corner It would, of course, appear to be (Property Corner -C) was the clear that some water would have highest elevation on the site. How- flowed off of the site and against the ever, Mr. Parks testified that it lagoon banks in the absence of the (Station 0+00) was a high point dike. This is consistent with Mr. and
conceded that some water Williams' testimony that water drained to the north beyond the which overflowed the lagoon banks boundary fence (Tr. 172). Al- came from off of the site to the west. though this may have affected a We find that the dike was to the small portion of the total site, there southwest of the lagoon and could would appear to be no room for not have channeled floodwaters didoubt that the diversion dike would rectly into the lagoon. We further intercept some of such waters and find that although the dike did have channel them to the southeast. We a channeling and concentrating effect as to on-site surface waters lish that the dike was a major from the south and west, the dike factor in the flood damage to the lahas not been shown to be a major goon. Even if our finding in this refactor in the concentration of water spect had been otherwise, appellant in the lagoon area and resulting has not shown that construction of damage to the lagoon. There is evi- the dike was ordered or approved dence, which we accept as accu- by anyone having authority to comrate, that water was channeled into mit the Government. It follows that the lagoon by the lagoon access appellant has not established that road.31
construction of the dike was the reArticle 12 of the General Provi- sponsibility of the Government. sions (Permits and Responsibili- It is well settled that a contractor ties) provides in part that the con- seeking to shift to the Government tractor shall be responsible for all the risk of loss placed upon it by the materials delivered and work per- Permits and Responsibilities clause formed until completion and ac- must prove by a preponderance of ceptance of the entire construction the evidence that the loss was atwork.
tributable to fault of the GovernDecision
ment.32 The most that could be said
here is that the dike had some indeThe evidence establishes and ap
terminate effect in concentrating pellant has admitted that the open
floodwaters in the lagoon area. Apsewer trench was a factor in channeling floodwater into the lagoon. pellant has failed to demonstrate Whatever may be the responsibility that damage to the lagoon was atfor the open sewer trench as between tributable to fault of the Governappellant and its subcontractor, it is
ment. clear that as between appellant and
Conclusion: the Government the open trench was
The appeal is denied in its appellant's responsibility.
entirety. While we have found that the SPENCER T. NISSEN, Member. dike had a concentrating and chan
I COXCUR: neling effect as to on-site surface waters, the evidence does not estab- WILLIAM F. McGRAW, Chairman.
ESTATE OF NEOLA AGNES
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.)
2 IBIA 16
Decided April 26, 1973
22 Steenberg Construction Company, IBCA No. 520-10–65 (May 8, 1972), 79 I.D. 158, 72-1 BCA par. 9459, at 44,027.