We are obliged to conclude that there is no clear and convincing evidence in the record, express or implied, showing that the grandfather or the decedent promised to compensate the appellant for the care rendered, although appellant may have expected it. We further conclude that the claim for attorney's fees is not a proper claim against the estate of the decedent since it is a private business matter between the appellant and her attorney. See Estate of John J. Akers, 1 IBIA 246, 79 I.D. 404 (1972). We find no merit to any of the other contentions raised against the decision of the Judge after rehearing. NOW, THEREFORE, by virtue of the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 43 CFR 4.1, the Judge's decision denying the claim of Lucille Hall for care in the amount of $9,800 and the claim of Robert Hurly, Esquire, for attorney's fees is hereby AFFIRMED. This decision is final for the Department. MITCHELL J. SABAGH, Member. I CONCUR: DAVID DOANE, Alternate Member. APPEAL OF F. H. ANTRIM CONSTRUCTION CO., INC. IBCA-914-6-71 Decided April 20, 1973 Contract No. 14-20-0150-946, Project Number LH 54-581, Santa Rosa School, Santa Rosa, Arizona, Bureau of Indian Affairs. Denied. Contracts: Construction and Operation: Actions of Parties-Contracts: Construction and Operation: Drawings and Specifications-Contracts: Formation and Validity: Authority to Make The Board denies a construction contractor's claim for the cost of constructing a dike which was not a contract requirement where it finds: (i) that the dike was constructed of excess material from a sewage lagoon, excavation of which was a contract requirement; (ii) a reasonable construction of the contract would permit the contracting officer to direct the placement of excess material from the lagoon at any place within onehalf mile of the site and no part of the dike was in excess of one-half mile from the site; (iii) construction of the dike was not ordered or approved by anyone having authority to commit the Government; and (iv) the contractor failed to protest to the contracting officer when the alleged extra work was performed. Contracts: Construction and Operation: Actions of Parties-Contracts: Construction and Operation: Changes and Extras-Contracts: Disputes and Remedies: Burden of Proof A contractor's claim for the cost of repairing a lagoon which was allegedly damaged because a dike not required by the contract channeled floodwaters from a rainstorm into the lagoon was denied where the evidence did not establish Government responsibility for the existence of the dike, a portion of the damage was attributable to an open sewer trench which was the contractor's responsibility and the evidence did not establish that the dike was a principal causative factor April 20, 1973 in flood damage to the lagoon. Under the Permits and Responsibilities clause (Article 12 of Standard Form 23-A, June 1964 Edition), the contractor is responsible for the work until completion and final acceptance. APPEARANCES: Gardiner Johnson, Attorney At Law, Johnson & Stanton, San Francisco, California for the Appellant; Barry K. Berkson, Department Counsel, Albuquerque, New Mexico for the Government. OPINION BY MR. NISSEN lagoon. Although the claims arise from events occurring in January and July of 1968, they were first submitted to the contracting officer by letter dated November 17, 1970.* The first claim is in the amount of $17,479. Specifically appellant alleges that it was required by the Government's project inspector to deposit waste materials exacavated from the sewage lagoon along the northern property line of the project and there construct a dike not called for by the specifications. The second claim states in effect that the dike so constructed channeled floodwaters from a rainstorm into the lagoon and that appellant incurred costs totaling $35,501 in "removing mud, reshaping and compacting." On September 25, 1967, F. H. Antrim Construction Company, Inc., contracted with the Bureau of Indian Affairs to construct the Santa Rosa School and related facilities at Santa Rosa, Arizona.' The contract amount, as adjusted by change orders, was $2,176,979.18.2 The contractor substantially completed structed at the direction of the Gov the project on November 15, 1968, and final acceptance was given by the Government, effective June 2, 1969.3 The construction of a sewage lagoon was a required part of the project work. The appellant's two claims are based on alleged extra work in connection with the sewage 1 We have previously dismissed as beyond our jurisdiction certain of the contractor's elaims under this contract. F. H. Antrim Construction Co., Inc., IBCA-882-12-70 (July 28, 1971), 78 I.D. 265, 71-2 BCA par. 8983. * Findings of Fact and Decision, dated May 21, 1971, p. 4. The contract included Standard Form 23-A (June 1964 Edition) with modifications not pertinent here. * Letter of February 24, 1970, Appeal File, Exhibit 6. References are to the appeal file unless otherwise noted. The Contracting Officer denied the first claim, finding that the work was within the terms of the contract and that the dike was not con Exhibit 11. There is no explanation in the record for the delay in submitting the claims. 5 Complaint, dated June 21, 1971. Although the claim as stated in the complaint is limited to construction of the dike, it is clear that costs claimed ($17,479) include costs of moving material from the lagoon to the area at the drainage ditch in the northwest corner of the project site (claim letter of November 17, 1970, note 4 supra). The letter states 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 sum claimed was computed on this yardage. • Complaint, dated June 21, 1971. Appellant also alleged that necessary repairs to the lagoon were used as an excuse to delay final acceptance of the project and that the cost of these delays (at least two months) should be paid as part of the claim (claim letter of November 17, 1970 (note 4, supra)). This contention has been abandoned since it was not mentioned at the hearing or in appellant's post hearing brief, which is labeled "Opening Brief." 7 Findings and Decision, page 27. He relied upon provisions of the specification which appear to give the Government an option of having the material disposed of anywhere within one-half mile of the site (Findings, page 18). Division 2 of the specifications is entitled "Site Work," Section C of Division 2 is entitled "Earthwork For Utilities" and Paragraph 4 of Section C is entitled "Borrow." Subparagraph 2C.4.c. provides: "Disposal: Excess material produced by grading and excavation and not usable nor needed in the filling or backfilling shall be disposed of in the nearby vicinity (within 2 mile of the site) as directed." Paragraph 6 of Section C (Earthwork For Utilities) is entitled "Earthwork For Lagoons." Subparagraph 2C.6.b. provides in part: "*** Excess cut material, if any, shall be disposed of by using the material for flattening the outside slopes of the pond dikes, and increasing the height of the lap dikes or as directed by the Contracting Officer. * * *" Although the Government objected to this terminology (Tr. 39, 40), we will refer to the structure as a dike since the parties used this term throughout the hearing. The Government disputing that the structure was a dike, or functioned as one, refers to it as the "unreal dike" (Closing Brief, p. 1). Tr. 41. Mr. Antrim located the eastern portion of the dike by a red arrow and circle on Sheet No. 4 of 7, Drawing No. Y-947 (App's Exh. 2). the north property line near to a point in the northwest corner of the project site identified on the Key Sheet as Property Corner -1.10 Mr. Antrim testified that the dike was approximately 2,000 feet long, an average of 20 feet wide, and 3 feet high (Tr. 33, 34, 46). He estimated that from 5,000 to 6,000 cubic yards of earth excavated from the sewage lagoon were placed in the dike (see note 5, supra). The Key Sheet indicates that the fence referred to above is 1,630 feet long and the dike extended an indeterminate number of feet eastward beyond the corner post (Property Corner -3) where the fence extended in a northeast 10 Property Corner -1 is approximately 58 feet (50 feet plus the width of the diversion ditch) from the corner of the project site which is identified as Property Corner -C. The contract required that the diversion ditch be eight feet wide at the bottom from Station 4+00 north and 12 feet wide at the bottom from Station 5+00 south (Diversion Ditch Plan & Profile, Sheet No. 11 of 16, Exh. B). 11 These figures would indicate total excavation in excess of 100,000 cubic yards. However, it appears that actual excavation was substantially less since the lagoon banks sloped inward and there were benches which indicate that the entire lagoon area was not excavated to the depth indicated. April 20, 1973 tion for the lagoon commenced on December 13, 1967, the work was delayed by heavy rains and substantial excavation was not accomplished until the last week in December of 1967 (Tr. 193, 250). Excavated material from the lagoon was hauled into the building area for fill and grading purposes (Tr. 112, 193, 256). After the building area had been brought to approximately finished grade, appellant's construction superintendent, Mr. Edward Oldham, came to Mr. Ralph Williams, Government project inspector, and inquired where excess material from the lagoon could be placed (Tr. 112, 118, 193, 261, 262). Mr. Williams designated an area in the northwest corner of the project site along the east bank of the diversion ditch between Station 0+00 and Property Corner -1.12 Mr. Oldham indicated that "*** they wanted to widen the dike, on the perimeter dike, the ditching dike **** (Tr. 120). 12 Tr. 120, 130, 194, 195, 261-263. Subparagraph 2G.13. of the specification provides as follows: "Diversion Ditch and Dike: A diversion ditch and dike shall be constructed across the southern portion of the school site as shown on the drawings. The transverse section shall be as shown under Typical Section on Profile Sheet. The grading excavation, borrow, and fill compaction shall conform to the same headings under Site Grading of this Division." The heading "Site Grading" is Section "D" under Division 2, "Site Work", of the specification and Paragraph 3 of Section D is entitled "Excavation and Borrow." Subparagraphs 2D.3.b. and c. provide as follows: "b. Utilization of Excavated Materials. All suitable material removed from the excavations shall be used, insofar as practicable, in the formation of embankments, subgrades, slopes, and for such other purposes as directed by the Contracting Officer. No excavated material Neither Mr. Oldham nor Mr. Will liams could recall the date of this conversation which appears to have been approximately mid-January of 1968.13 While Mr. Antrim testified that the diversion ditch was the "first thing put in on the job" and that the ditch was completed at the time of the rains in July of 1968 (Tr. 91) the ditch was not complete at this time. The diversion ditch (notes 10 and 12, supra) is not to be confused with the "diversion dike." The diversion ditch extended for approximately 500 feet parallel to the northwestern boundary of the project site and shall be wasted without the authorization of the Contracting Officer. Material authorized to be wasted shall be disposed of as directed by the Contracting Officer, and in such manner as not to obstruct the flow characteristics of any stream or to impair the efficiency or appearance of any structure. No excavated material shall be deposited at any time in a manner that may endanger a partly finished structure by direct pressure, by overloading banks contiguous to the operations, or that may be in any other way detrimental to the completed work. "c. Selection of Borrow Material. Borrow material shall be selected to meet the requirements and conditions for the particular embankment or backfill for which it is to be used. Borrow material shall be obtained from sources selected by the Contractor, subject to the approval of the Contracting Officer. All necessary clearing, the grubbing of borrow pits, the disposal and burning of the debris therefrom, and satisfactory drainage of the borrow pits, shall be considered as incidental operations to the borrow excavation, and shall be performed by the Contractor at no additional cost to the Government." 13 Tr. 131, 132, 196. Daily Construction Reports written by Mr. Williams, not all of which are in evidence, reflect that material from the lagoon was being placed at the building areas as of January 5, 1968 (Tr. 256). The first Report which indicates any other disposition of earth from the lagoons is that of January 22, 1968, which states in part: "Excavating sewerage Lagoons. Wasting excess dirt from lagoons on downstream side of Diversion Ditch Dike." [sic] (Exh. 7). then curved to the southeast (App's Exh. 1). The total length of the diversion ditch was approximately 4,126 feet, not all of which was on the project site (App's Exh. 1). Its purpose was to intercept water from the west and south and drain it away from the site to the east and north (Tr. 171, 172). The contract required that an embankment of compacted fill four feet wide at the top having a slope of 4:1 on the side away from the ditch be placed along the downstream (eastern and northern) sides of the ditch (Diversion Ditch Plan and Profile, note 10, supra). The general slope of the project site was to the east (Tr. 26, 151; Existing Site Plan, Govt's Exh. A). However, to the northwest of the project site was an area of lower elevation identified as a "wash" and the break point as to whether the flow in the diversion ditch was to the north or the south was Station 0+00, which is approximately 230 feet to the south of Property Corner –1. Mr. Williams testified that the route used by appellant's equipment in hauling earth from the lagoon to the east bank of the diversion ditch was along the north fence line (Tr. 196, 197). He stated that at this time (mid-January 1968) the diversion dike had not been constructed. He asserted that Mr. Oldham inquired as to whether it would be all right to place waste material along the north fence line.14 He 14 He stated that the desert soil "powders up" where traveled by heavy equipment and "But in order to facilitate the moving of this dirt to a waste area up in here, he [Oldham] testified that after he and Mr. Oldham “*** looked the area over and decided that it wouldn't have any effect on anything, we decided it would be all right to waste dirt in that area." 15 The only condition placed upon disposal of earth along the fence was that the material not be higher than the desert vegetation which was approximately 18 to 36 inches in height (Tr. 204, 264). The dike, according to Mr. Williams, was constructed during the following week or ten days and was completed by the end of January 1968 (Tr. 205, 206, 209). Mr. Oldham denied requesting permission to build a dike or road (Tr. 118). However, he stated "Our only request was that we wanted u place to put excess material which we had to get rid of" (Tr. 118). He admitted that he did not object to placing the material on the dike because "*** I had to have someplace to put the material" (Tr. 135). He testified that the dike had been completed before they were requested to place material along the diversion ditch (Tr. 130, 131). We find that the testimony of Mr. Williams that the dike had not been constructed at the time appellant was placing earth excavated from the lagoon along the east bank of wanted to just plate this area up in here to have something to run his equipment on, to stay out of that dust." (Tr. 197.) 15 Tr. 199. When asked on cross examination what he meant by "it wouldn't effect (sic) anything," he replied, "Well, the dike, the socalled dike along the fence at the north property line was running in the same direction that the water would run, and it wouldn't divert water from any direction as far as I could see." (Tr. 279.) |