The company places its claim for allowance of dues paid to the Navy League (item 27), the Army Aviation Association of America (item 29), the Air Force Association (item 30) and the Association of the U. S. Army (item 32) solely on the ground that they are trade, business, technical and professional organizations within the meaning of Sec. 15-205.43(a). The history of these organizations, their membership, their objectives and activities as they are disclosed by this record require us to find that they are neither trade, business, technical or professional, and the costs of membership are accordingly disallowed. DECISION The appeal is sustained in part and the costs in issue are allowed and disallowed according the the following Table. ITEM ALLOWED DISALLOWED CORPORATE, LEGAL & ACCOUNTING EXPENSE 3. a. 4. a. Trustee's fee re 5% debentures debentures Trustee's fee Legal fee-general counsel - Printing stock certificates Legal fee-general counsel fee Accounting Fee 5. a. C. 6. a. 5,200.00 15,619.95 -0- ITEM ALLOWED DISALLOWED B. PUBLIC RELATIONS EXPENSE 9. e. f 10. -0 50th Anniversary guests display tion East Coast Travel model display-shipping Division -rep. fees -SST unveiling -Lufthansa & Mexico - charter-727 QC Branch bution 349.52 . Greater Seattle, Inc. and King County School Trade Fair 26. 27. 28. 29. 4,000.00 -0-0250.00 -0 America -0- 30. 31. 32. -0-0100.00 -0 250.00 2,752.00 -01,000.00 Dated 24 October 1973 Section 7. Payments SMITH CONSTRUCTION COMPANY, INC. ASBCA No. 13,656 (1970) Appellant (hereafter sometimes "Smith Construction") requested, and was denied, an equitable adjustment for extra work occasioned on a construction contract by reason of silt deposits in drainage ditches following a hurricane. *** For the purpose of determining entitlement, which is all that is before the Board at this time, there is no dispute regarding the facts. Smith Construction agreed, for a lump sum, to repair erosion to certain drainage ditches. This work included excavating or filling and reshaping the ditches; grubbing or digging out, removal and disposal of encroaching brush and trees; repair and reconditioning of drainage structures and accessory construction; and preparing ditch areas for placing of protective cover and fertilizing and planting these areas. Work was commenced on July 17, 1967. During August, 1967, 99% of the clearing had been done; brush had been piled up, although not yet burned; most, but not all of the vegetation had been cleared. It was initially estimated that about 58,000 - 60,000 cubic yards of earth had to be removed. By September 18, 1967, about half of this quantity had been excavated. On that date, the famous hurricane "Beulah'' blew in, and washed at least 10,000 cubic yards of silt back into the partially-excavated ditches. Appellant claims that it is entitled to the cost of re-excavating the ditches, as well as certain other work made necessary because of the hurricane. At the hearing of this appeal, counsel for the appellant indicated that he was proceeding on the theory that this case differed from those in which a partially-built structure was damaged by an act of God. It was also urged that, by having made progress payments, the Government had accepted that portion of the work which preceded the payment, and therefore the responsibility was that of the Government in any event. We are unable to distinguish this case from others in which heavy rains, hurricanes and other natural disasters damaged work in progress, or increased the quantity of work to be done after the contract date. It has uniformly been held that the responsibility for repair of such work is on the contractor until acceptance of the work, under the standard contract clauses (Standard Form 23-A). No distinction has been made as between the partial erection of structures or the partial creation of a void, such as in the excavation of a ditch or foundation, or in dredging operations. See Keflavik Contractors, ASBCA No. 6387, 61-2 BCA par. 3161 (erosion of soil during heavy rains, increasing the cost of repairing a surface drainage system); DeArmas v. U.s., 108 Ct. cl. 436 (1947) (damage by storm of fascine mattresses placed by plaintiff on river floor); Arundel Corporation v. U.s., 103 Ct. ci. 688 (1945) (scouring of underwater areas by a hurricane, which areas plaintiff had agreed to dredge). See also Twilight Janitorial Service, ASBCA No. 12420, 68-2 BCA par. 7374 (brushfire increasing quantity of cleaning required under janitorial service contract, because of additional ashes). The argument based on the progress payments does not appear to consider the provisions of the Payments Clause itself, which provides that the contractor remains liable for the restoration of damaged work until fulfillment of all of the terms of the contract, notwithstanding that the work and material covered by the progress payment becomes the property of the Government. On the basis of the foregoing, the appeal is denied. |
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