A-12445, JANUARY 21, 1926, 5 COMP. GEN. 508

A-12445: Jan 21, 1926

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UNLESS IT CLEARLY APPEARS THAT THE ADDITIONAL WORK WAS NOT IN CONTEMPLATION AT THE TIME OF THE ORIGINAL CONTRACTING AND IS SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTOR. 1924 (43 STAT. 413 (CORRECT CITATION P. 417) ( THERE WAS APPROPRIATED FROM THE RECLAMATION FUND ESTABLISHED UNDER THE ACT OF JUNE 17. THAT NO PART OF THIS APPROPRIATION (AND NO PART OF ANY UNENCUMBERED BALANCE OF THE 1924 APPROPRIATION FOR THE MINIDOKA PROJECT) SHALL BE EXPENDED ON THE AMERICAN FALLS RESERVOIR UNTIL (1) ALL ACTS HAVE BEEN PERFORMED THAT ARE NECESSARILY PRECEDENT TO THE CONFIRMATION OF TITLE IN FEE IN THE UNITED STATES FOR SAID RESERVOIR OF SUCH INDIAN LANDS AS ARE ESSENTIAL TO THE CONSTRUCTION OF THE SAME.

A-12445, JANUARY 21, 1926, 5 COMP. GEN. 508

CONTRACTS - ADDITIONAL WORK AN EXISTING CONTRACT FOR THE PERFORMANCE OF WORK FOR THE GOVERNMENT MAY NOT BE EXPANDED SO AS TO INCLUDE ADDITIONAL WORK OF ANY CONSIDERABLE MAGNITUDE WITHOUT COMPLIANCE WITH SECTION 3709, REVISED STATUTES, REQUIRING ADVERTISING AND ACCEPTANCE OF LOWEST BID, UNLESS IT CLEARLY APPEARS THAT THE ADDITIONAL WORK WAS NOT IN CONTEMPLATION AT THE TIME OF THE ORIGINAL CONTRACTING AND IS SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTOR.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JANUARY 21, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 22, 1925, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

BY THE ACT OF JUNE 5, 1924 (43 STAT. 413 (CORRECT CITATION P. 417) ( THERE WAS APPROPRIATED FROM THE RECLAMATION FUND ESTABLISHED UNDER THE ACT OF JUNE 17, 1902 (32 STAT., 388) IN CONNECTION WITH THE MINIDOKA PROJECT, IDAHO, $1,045,000 FOR "OPERATION AND MAINTENANCE, CONTINUATION OF CONSTRUCTION, AND INCIDENTAL OPERATIONS," WITH THE FOLLOWING PROVISO:

"PROVIDED, THAT NO PART OF THIS APPROPRIATION (AND NO PART OF ANY UNENCUMBERED BALANCE OF THE 1924 APPROPRIATION FOR THE MINIDOKA PROJECT) SHALL BE EXPENDED ON THE AMERICAN FALLS RESERVOIR UNTIL (1) ALL ACTS HAVE BEEN PERFORMED THAT ARE NECESSARILY PRECEDENT TO THE CONFIRMATION OF TITLE IN FEE IN THE UNITED STATES FOR SAID RESERVOIR OF SUCH INDIAN LANDS AS ARE ESSENTIAL TO THE CONSTRUCTION OF THE SAME; (2) COMPANIES AND DISTRICTS WHICH HAVE CONTRACTED TO COOPERATE WITH THE UNITED STATES IN THE CONSTRUCTION OF SAID RESERVOIR AND HAVE CONTRACTED TO PARTICIPATE IN SAID RESERVOIR TO AN AGGREGATE AMOUNT OF AT LEAST THREE HUNDRED AND SIXTY-FIVE THOUSAND ACRE-FEET SHALL HAVE PAID TO THE UNITED STATES THEIR DUE PROPORTIONATE SHARE OF ALL MONEYS EXPENDED BY THE UNITED STATES ON SAID RESERVOIR PRIOR TO THE DATE OF SAID PAYMENTS, INCLUDING INTEREST AT THE RATE OF 6 PERCENTUM PER ANNUM FROM THE TIME SUCH MONEYS WERE ADVANCED BY THE UNITED STATES; (3) THE AMERICAN FALLS RESERVOIR DISTRICT AND THE EMPIRE IRRIGATION DISTRICT SHALL EACH HAVE FILED WITH THE SECRETARY OF THE INTERIOR AN AGREEMENT BINDING EACH OF SAID DISTRICTS TO THE ELIMINATION OF THE SECOND PARAGRAPH OF ARTICLE 46 OF THEIR RESPECTIVE CONTRACTS OF JUNE 15, 1923, WITH THE UNITED STATES; AND (4) THE SAID COMPANIES AND DISTRICTS SHALL HAVE PAID TO OR DEPOSITED WITH THE UNITED STATES CASH OR UNITED STATES GOVERNMENT SECURITIES AMOUNTING TO A TOTAL OF AT LEAST $1,500,000: PROVIDED FURTHER, THAT NO CONTRACTOR SHALL SECURE A RIGHT TO THE USE OF WATER FROM SAID RESERVOIR EXCEPT UNDER A CONTRACT CONTAINING THE PROVISION THAT THE CONTRACTOR SHALL, AS A PART OF THE CONSTRUCTION COST, PAY INTEREST AT THE RATE OF 6 PERCENTUM PER ANNUM UPON THE CONTRACTOR'S PROPER PROPORTIONATE SHARE, AS FOUND BY THE SECRETARY OF THE INTERIOR, OF THE MONEYS ADVANCED BY THE UNITED STATES ON ACCOUNT OF THE CONSTRUCTION OF SAID RESERVOIR PRIOR TO THE DATE OF THE NTRACT.'

OF THE $1,045,000 SO APPROPRIATED $665,000 WAS FOR THE CONSTRUCTION OF THE AMERICAN FALLS RESERVOIR. FROM THE ESTIMATES OF APPROPRIATION INCLUDED IN THE BUDGET THE FOLLOWING IS QUOTED:

"THE ULTIMATE CAPACITY OF THE AMERICAN FALLS RESERVOIR IS GENERALLY CONSIDERED TO BE ABOUT 3,000,000 ACRE-FEET. IT IS NOW PROPOSED TO CONSTRUCT IT FOR A CAPACITY OF FROM 1,040,000 ACRE-FEET TO 1,700,000 ACRE- FEET, THE FORMER SIZE BEING REQUIRED TO TAKE CARE OF THE PRESENT CONTRACTS AND THE LATTER TO PERMIT OF A COMPLETE TRANSFER OF ALL JACKSON LAKE RIGHTS TO AMERICAN FALLS. CONTRACTS WITH IRRIGATION DISTRICTS AND OTHERS FOR STORAGE IN THE AMERICAN FALLS RESERVOIR PROVIDE FOR THEIR ADVANCING THE FUNDS AS REQUIRED FOR CONSTRUCTION.

"THERE IS INCLUDED $265,000 FOR DAM CONSTRUCTION AND $400,000 FOR RIGHT OF WAY. THESE FUNDS AND THOSE ADVANCED BY OTHER ORGANIZATIONS WILL BE REQUIRED FOR THE CONSTRUCTION OF THE CAMP, TEMPORARY DIVERSION WORKS, EAST HALF OF SPILLWAY SECTION, EAST ABUTMENT, AND THE PURCHASE OF ALL NECESSARY GATES, STRUCTURAL STEEL, RIGHT OF WAY, ETC.'

THE HEARINGS BEFORE THE HOUSE SUBCOMMITTEE ON APPROPRIATIONS WILL BE FOUND AT PAGES 855-873 OF THE RECORD, WHERE THE VARIOUS FEATURES INVOLVED ARE DISCUSSED AT LENGTH. THE HEARINGS BEFORE THE SENATE SUBCOMMITTEE WILL BE FOUND AT PAGES 71-78 OF THE RECORD.

FOR THE FISCAL YEAR 1926 THERE WAS APPROPRIATED $797,000 IN CONNECTION WITH THE MINIDOKA PROJECT "FOR OPERATION AND MAINTENANCE, CONTINUATION OF CONSTRUCTION, AND INCIDENTAL OPERATIONS.' OF THIS AMOUNT $627,000 WAS FOR THE CONSTRUCTION OF THE AMERICAN FALLS RESERVOIR.

THE HEARINGS BEFORE THE HOUSE SUBCOMMITTEE ON APPROPRIATIONS WILL BE FOUND ON PAGES 384-397 OF THE RECORD. IT WILL BE NOTED THAT ON PAGES 386 AND 387 IT IS SHOWN THAT ALL OF THE FOUR CONDITIONS ATTACHED TO THE APPROPRIATION OF JUNE 5, 1924, SUPRA, HAVE BEEN FULFILLED.

THE SIZE OF THE RESERVOIR TO BE CONSTRUCTED IS NOT STATED IN ANY OF THE ACTS OF CONGRESS MAKING APPROPRIATIONS FOR THE PROJECT, NOR DO ANY OF THE CONTRACTS EXECUTED WITH THE VARIOUS DISTRICTS AND COMPANIES COOPERATING WITH THE UNITED STATES STIPULATE THE SIZE OF THE RESERVOIR TO BE BUILT. THESE CONTRACTS OBLIGATE THE RESPECTIVE DISTRICTS AND COMPANIES TO PURCHASE DEFINITE AMOUNTS OF WATER STATED, BUT WITH PROVISION FOR ADJUSTMENT OF THE ACRE-FOOT CHARGE FOR SUCH WATER IN ACCORDANCE WITH THE ACTUAL COST OF THE WORKS, THE VARIOUS DISTRICTS AND COMPANIES AGREEING TO PAY THEIR PROPORTIONATE PART OF THE COST. WHILE PLANS CONTEMPLATE A RESERVOIR WITH A POSSIBLE ULTIMATE CAPACITY OF 3,000,000 ACRE-FEET, THE APPROPRIATIONS HERETOFORE REQUESTED AND MADE BY CONGRESS WERE BASED UPON A RESERVOIR WITH CAPACITY OF 1,040,000 ACRE-FEET, OR IN ALTERNATIVE A LARGER RESERVOIR WITH CAPACITY OF 1,700,000 ACRE-FEET.

SOME OF THE DISTRICTS WHICH HAVE HERETOFORE CONTRACTED FOR THE PURCHASE OF STORAGE CAPACITY IN THE RESERVOIR HAVE DEFAULTED IN PAYMENT AS THE CONTRACTS PROVIDE, BECAUSE OF INABILITY TO SELL BONDS OR OTHERWISE TO PROVIDE THE REQUIRED FUNDS. THIS RENDERS IT NECESSARY FOR THE UNITED STATES TO FINANCE A LARGER PROPORTION OF THE WORK THAN WOULD HAVE BEEN THE CASE HAD ALL PAYMENTS BEEN MADE AS PROVIDED BY THE CONTRACTS MENTIONED. THIS WILL BE THE CASE IRRESPECTIVE OF THE SIZE OF THE RESERVOIR TO BE CONSTRUCTED. THERE IS NO QUESTION OF THE ABILITY OF THE UNITED STATES TO SELL THE SURPLUS WATER WHICH WILL BECOME AVAILABLE IN THE LARGER RESERVOIR THE CONSTRUCTION OF WHICH WILL RESULT IN A REDUCTION IN THE COST OF STORAGE OF APPROXIMATELY $2 AN ACRE-FOOT, MAKING THE COST FOR THE LARGER RESERVOIR ABOUT $5 AN ACRE-FOOT AS COMPARED TO A COST OF APPROXIMATELY $7 AN ACRE-FOOT FOR THE SMALLER RESERVOIR.

UNDER DATE OF JANUARY 23, 1925, CONTRACT WAS EXECUTED BETWEEN THE UNITED STATES AND THE UTAH CONSTRUCTION CO. FOR CONSTRUCTION OF THE AMERICAN FALLS DAM. PARAGRAPH 45 OF THIS CONTRACT READS AS FOLLOWS:

"CHANGE FROM DAM FOR 1,040,000 ACRE-FEET TO DAM FOR 1,700,000 ACRE FEET.- -- THE DRAWINGS SHOW A DAM FOR STORAGE OF 1,040,000ACRE-FEET, WITH THE RIVER SECTION BUILT ON A BASE BELOW ELEVATION 4,300, FOR A DAM FOR STORAGE OF 1,700,000 ACRE-FEET. THE UNITED STATES RESERVES THE RIGHT TO REQUIRE THE CONTRACTOR TO CHANGE FROM THE CONSTRUCTION OF THE LOW DAM TO THE CONSTRUCTION OF THE HIGH DAM BY WRITTEN NOTICE SERVED BY THE ENGINEER AT ANY TIME PRIOR TO THE COMPLETION OF THE RIVER SECTION TO ELEVATION 4,300. IF NO SUCH ORDER IS RECEIVED, THE CONTRACTOR SHALL PROCEED WITH THE CONSTRUCTION OF THE LOW DAM. THE CONTRACTOR SHALL CONSTRUCT SAID BASE AND OTHER PORTIONS OF THE DAM THAT WILL NOT BE AFFECTED BY A CHANGE FROM THE LOW DAM TO THE HIGH DAM BEFORE PROCEEDING WITH THE PORTIONS OF THE DAM THAT WOULD BE AFFECTED BY SUCH A CHANGE. THE CHANGE FROM THE LOW DAM TO THE HIGH DAM INVOLVES AN INCREASE OF ABOUT 13.2 FEET IN THE HEIGHT OF THE DAM AND AN INCREASE IN THE VOLUME OF MASS CONCRETE FROM APPROXIMATELY 107,000 CUBIC YARDS TO APPROXIMATELY 156,000 CUBIC YARDS, WITH CORRESPONDING INCREASES IN OTHER QUANTITIES. PAYMENT FOR ALL QUANTITIES IN EITHER THE HIGH DAM OR LOW DAM SHALL BE MADE AT THE UNIT PRICES SET FORTH IN THE PROPOSAL IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 48 OF THESE SPECIFICATIONS, PROVIDED THAT IN CASE THE HIGH DAM IS CONSTRUCTED A LUMP-SUM DEDUCTION OF $40,000 SHALL BE MADE FROM THE FINAL CONTRACT PAYMENT AS ADJUSTED COMPENSATION ON ACCOUNT OF THE INCREASE IN VOLUME OF WORK, THIS DIFFERENTIAL BEING CONSIDERED AS A REASONABLE ESTIMATE OF THE ADVANTAGE TO THE CONTRACTOR.'

THE INSERTION OF THIS PARAGRAPH WAS PROMPTED BY THE FACT THAT AT THE TIME THE CONTRACT WAS EXECUTED THE SIZE OF THE DAM TO BE CONSTRUCTED WAS INDETERMINATE, BEING DEPENDENT UPON THE AMOUNT OF STORAGE CAPACITY IN THE RESERVOIR FOR THE SALE OF WHICH CONTRACTS COULD BE SECURED AND FUNDS ADVANCED AS REQUIRED BY THE LAST PROVISO OF THE ACT OF JUNE 5, 1924, SUPRA. THE WORK HAS NOW REACHED A POINT WHERE IT IS IMPERATIVE THAT THE CONTRACTOR BE NOTIFIED WHETHER THE SMALL OR LARGE DAM IS TO BE BUILT.

PARAGRAPH 51 OF THE DETAIL SPECIFICATIONS MADE A PART OF THE CONTRACT BEFORE MENTIONED WITH THE UTAH CONSTRUCTION COMPANY, READS AS FOLLOWS:

"FAILURE OF CONGRESS TO APPROPRIATE FUNDS.--- WHERE THE OPERATIONS OF THIS CONTRACT EXTEND BEYOND THE CURRENT FISCAL YEAR, IT IS UNDERSTOOD THAT THE CONTRACT IS MADE CONTINGENT UPON CONGRESS MAKING THE NECESSARY APPROPRIATION FOR EXPENDITURES THEREUNDER AFTER SUCH CURRENT YEAR HAS EXPIRED. IN CASE SUCH APPROPRIATION AS MAY BE NECESSARY TO CARRY OUT THIS CONTRACT IS NOT MADE, THE CONTRACTOR HEREBY RELEASES THE UNITED STATES FROM ALL LIABILITY DUE TO THE FAILURE OF CONGRESS TO MAKE SUCH APPROPRIATIONS.'

NO CONDITIONS OR LIMITATIONS ARE PRESCRIBED BY THE VARIOUS ACTS OF CONGRESS OTHER THAN THOSE CONTAINED IN THE ACT OF JUNE 5, 1924, HEREINBEFORE QUOTED, ALL OF WHICH HAVE BEEN FULLY MET. IF THE LARGER DAM IS CONSTRUCTED AND NO FURTHER FUNDS ARE PROVIDED BY COOPERATING DISTRICTS AND COMPANIES, THE APPROPRIATION BY CONGRESS OF APPROXIMATELY $1,635,000 ADDITIONAL FUNDS WILL BE REQUIRED. THE ESTIMATED GROSS COST OF THE LARGER DAM IS $8,384,000.

IN THE LIGHT OF THE AUTHORIZATION HERETOFORE GIVEN AND THE CONDITIONS OUTLINED THERE APPEARS TO BE NO REASON WHY THE UTAH CONSTRUCTION COMPANY MAY NOT BE DIRECTED TO PROCEED WITH THE CONSTRUCTION OF THE LARGER DAM, SUBJECT, OF COURSE, TO THE APPROPRIATION BY CONGRESS OF THE ADDITIONAL FUNDS NECESSARY TO COMPLETE THE WORK AS PROVIDED IN PARAGRAPH 51. BECAUSE OF THE MAGNITUDE OF THE WORK AND THE UNUSUAL CONDITIONS SURROUNDING IT, YOUR DECISION UPON THIS POINT IS REQUESTED.

THE MATTER THAT FIRST SUGGESTS ITSELF, FROM AN EXAMINATION OF THE FACTS AS STATED IN YOUR SUBMISSION, IS WHETHER THE DEFAULTS OF DISTRICTS AS STATED, WHICH WILL NECESSITATE THE UNITED STATES FINANCING AN INCREASED PROPORTION OF THE WORK, IS SUCH A NEW CONDITION OR ONE ATTEMPTED TO BE GUARDED AGAINST BY THE PROVISO IN THE ENACTMENT APPROVED JUNE 5, 1924, QUOTED IN YOUR SUBMISSION, AS TO REQUIRE FURTHER LEGISLATIVE AUTHORITY OR EXPRESSION IN THE MATTER. THE FACTS SUBMITTED ARE NOT SUFFICIENT TO MAKE THE SITUATION CLEAR IN THIS RESPECT AND NO VIEW IS NOW EXPRESSED THEREON.

IT WILL BE ASSUMED IN WHAT IS HEREAFTER SAID THAT THERE EXISTS ADMINISTRATIVE WARRANT AND AUTHORITY TO INCREASE THE CAPACITY OF THE RESERVOIR BY THE ADDITIONAL WORK PROPOSED AND THAT IN CONNECTION WITH THE CONTRACTING FOR THE DAM TO STORE 1,040,000 ACRE-FEET, WITH THE UTAH CONSTRUCTION CO., COMPETITION WAS OBTAINED AS REQUIRED BY SECTION 3709, REVISED STATUTES.

IT APPEARS THE PROPOSED CHANGE TO INCREASE THE STORAGE CAPACITY FROM 1,040,000 TO 1,700,000 WOULD PRACTICALLY DOUBLE THE WORK ACTUALLY CONTRACTED FOR AND THAT THE UTAH CONSTRUCTION CO. AS A PART OF ITS CONTRACT IN THE MATTER AGREED TO DO SUCH ADDITIONAL WORK, IF DIRECTED SO TO DO, AT THE UNIT PRICE STIPULATED WITH A LUMP-SUM DEDUCTION OF $40,000 ON ACCOUNT OF ADVANTAGES THAT WOULD ACCRUE TO IT BY REASON OF THE INCREASED WORK. IT IS SUGGESTED THERE WAS A QUESTION AT THE TIME OF CONTRACTING WHETHER THE CONSTRUCTION SHOULD BE TO GIVE A STORAGE CAPACITY OF 1,040,000 OR 1,700,000 ACRE-FEET, AND THAT BECAUSE OF SUCH UNCERTAINTY THE PROVISIONS FOR ALTERNATIVE CONSTRUCTION WERE INCLUDED IN THE CONTRACT WITH THE UTAH CONSTRUCTION CO. IT DOES NOT APPEAR WHETHER THE INVITATION FOR BIDS INCLUDED SUCH MATTER OF ALTERNATIVE CONSTRUCTION SO AS TO REQUIRE BIDDING THEREON ACCORDINGLY. NEITHER DOES IT APPEAR THAT THE ADDITIONAL CONSTRUCTION WORK, IF IT SHOULD BE DETERMINED UPON, COULD NOT BE DONE BY ANOTHER THAN THE UTAH CONSTRUCTION CO., AND POSSIBLY AT A PRICE LESS THAN ITS PRESENT OFFER.

BY THE PROVISIONS OF PARAGRAPH 45 OF THE CONTRACT THE UNITED STATES UNQUESTIONABLY RESERVED THE RIGHT TO HAVE THE DAM SO CONSTRUCTED, AT ITS ELECTION, AS TO GIVE THE GREATER STORAGE CAPACITY, AND THE UTAH CONSTRUCTION CO. NOT ONLY AGREED TO PROCEED WITH ITS CONTRACT WORK IN SUCH A WAY AS TO LEAVE FOR LATER DETERMINATION THE MATTER OF THE ADDITIONAL CONSTRUCTION, BUT IN CONNECTION THEREWITH DEFINITELY AGREED AS TO THE PRICE IT WOULD CHARGE FOR DOING THE ADDITIONAL WORK IN THE EVENT THE UNITED STATES SHOULD DIRECT IT TO PROCEED THEREWITH. IT DOES NOT NECESSARILY FOLLOW, HOWEVER, FROM WHAT IS SHOWN THAT THE ADDITIONAL WORK WAS NECESSARILY FOR PERFORMANCE, IF DETERMINED UPON, BY THE UTAH CONSTRUCTION CO. IF THE MATTER OF ALTERNATIVE CONSTRUCTION AS APPEARS IN THE UTAH CONSTRUCTION CO. CONTRACT WAS DULY SUBMITTED FOR BIDS PURSUANT TO SECTION 3709, REVISED STATUTES, WAS BID UPON, AND THE CONTRACT WORK AS SO DISCLOSED AND BID UPON WAS AWARDED THE UTAH CONSTRUCTION CO. AS THE LOWEST RESPONSIBLE BIDDER AS REQUIRED BY LAW, THERE WOULD NOW APPEAR NO LEGAL OBJECTION TO SUCH DETERMINATION AND ACTION THEREON AS WOULD REQUIRE DOING OF THE ADDITIONAL WORK BY SUCH COMPANY AS PER THE TERMS AND CONDITIONS OF ITS CONTRACT. OTHERWISE, THE SITUATION WOULD APPEAR TO BE THAT AS A PART OF ITS AGREEMENT WITH THE UNITED STATES THE UTAH CONSTRUCTION CO. AGREED TO DO THE ADDITIONAL WORK, IF CALLED UPON TO DO IT, AT THE PRICE STIPULATED IN THE CONTRACT. SUCH AGREEMENT, HOWEVER, WHILE NO DOUBT BINDING UPON THE COMPANY, WOULD NOT RENDER UNNECESSARY COMPLIANCE WITH THE PROVISIONS OF SECTION 3709, REVISED STATUTES, AS TO NOW OBTAINING COMPETITION IN THE MATTER OF LETTING CONTRACT FOR THE ADDITIONAL WORK, IF IT SHOULD BE DETERMINED UPON. IN GENERAL, AN EXISTING CONTRACT MAY NOT BE EXPANDED SO AS TO INCLUDE ADDITIONAL WORK OF ANY CONSIDERABLE MAGNITUDE, WITHOUT COMPLIANCE WITH SECTION 3709, REVISED STATUTES, UNLESS IT CLEARLY APPEARS THAT THE ADDITIONAL WORK WAS NOT IN CONTEMPLATION AT THE TIME OF THE ORIGINAL CONTRACTING AND IS SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTOR. THE APPARENT PROBABILITY THAT THE ADDITIONAL WORK MAY BE DONE MORE CONVENIENTLY OR EVEN AT LESS EXPENSE BY THE ORIGINAL CONTRACTOR, BECAUSE OF BEING ENGAGED UPON THE ORIGINAL WORK, OR OTHERWISE, IS NOT CONTROLLING OF THE MATTER AS TO WHETHER THE PROVISIONS OF SECTION 3709 ARE FOR APPLICATION. WHETHER THE ORIGINAL CONTRACTOR CAN DO THE WORK AT LESS EXPENSE TO THE GOVERNMENT THAN CAN ANY OTHER CONTRACTOR IS POSSIBLE OF DEFINITE DETERMINATION ONLY BY SOLICITING COMPETITIVE BIDS AS CONTEMPLATED UNDER SAID SECTION. IN THE INSTANT MATTER IT WOULD APPEAR ENTIRELY PROPER FOR THE UTAH CONSTRUCTION CO. TO BID ON THE ADDITIONAL WORK, BUT IN VIEW OF ITS CONTRACT IT COULD NOT BE AWARDED A CONTRACT WITH PROVISIONS LESS ADVANTAGEOUS TO THE GOVERNMENT THAN APPEAR IN ITS EXISTING CONTRACT, ITS PROFFER IN THE MATTER BEING PRESUMED TO HAVE BEEN GIVEN CONSIDERATION AND WEIGHT IN THE AWARDING OF THE ORIGINAL CONTRACT.

IN THE ABSENCE OF DEFINITE INFORMATION ON THE POINTS HEREIN MENTIONED, I CAN NOT ADVISE YOU MORE SPECIFICALLY AT THIS TIME.