A-20675, JANUARY 27, 1937, 16 COMP. GEN. 682

A-20675: Jan 27, 1937

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IT IS AGREED THAT IN THE EVENT THE GOVERNMENT FAILS TO MAINTAIN. THAT THE WORK WAS COMMENCED WITHOUT THE KNOWLEDGE OF ANYONE AT THE VETERANS' ADMINISTRATION FACILITY. THAT BEFORE THE PRESENCE OF THE WORKERS WAS NOTED. THE WORK WAS WELL UNDER WAY. IT IMPOSES ON THE GOVERNMENT THE PRIMARY DUTY OF MAKING SUCH REPAIRS AND REASONABLY PRESUPPOSES THAT THE RAILROAD WILL GIVE DUE NOTICE THAT REPAIRS ARE NEEDED BEFORE IT PROCEEDS TO MAKE SUCH REPAIRS FOR THE ACCOUNT OF THE GOVERNMENT. THE VOUCHER WILL BE CERTIFIED FOR PAYMENT. IN VIEW OF THE FACT THAT THE GOVERNMENT HAS NO WAY TO ASCERTAIN THAT THE SPUR LINE TRACK AND SUPPORTING STRUCTURE ARE NOT IN REPAIR SATISFACTORY TO THE RAILROAD COMPANY.

A-20675, JANUARY 27, 1937, 16 COMP. GEN. 682

RAILROADS - SPUR TRACKS - REPAIRS AT GOVERNMENT EXPENSE - CARRIER'S PRIOR NOTICE OF NEED A CONTRACT PROVISION IMPOSING THE MAINTENANCE, REPAIR, AND RENEWAL OF A SPUR TRACK AND SUPPORTING STRUCTURE AT A VETERANS' ADMINISTRATION HOSPITAL PRIMARILY UPON THE GOVERNMENT, BUT RESERVING THE RIGHT OF SUCH MAINTENANCE, ETC., TO THE CARRIER AT THE EXPENSE OF THE GOVERNMENT IF NOT SATISFACTORILY PERFORMED BY THE LATTER, THOUGH NOT EXPRESSLY PROVIDING FOR PRIOR NOTICE BY THE CARRIER OF NEEDED REPAIRS, PRESUPPOSES SUCH NOTICE, AND NO REPAIRS SHOULD BE MADE BY THE CARRIER AT GOVERNMENT EXPENSE IN THE FUTURE UNLESS THE NEED HAS BEEN PREVIOUSLY CALLED TO THE ATTENTION OF THE PROPER VETERANS' ADMINISTRATION OFFICIALS FOR THEIR PRIOR ACTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JANUARY 27, 1937:

THERE HAS BEEN SUBMITTED TO THIS OFFICE FOR AUDIT BEFORE PAYMENT VOUCHER 31232 OF THE VETERANS' ADMINISTRATION STATED IN FAVOR OF HENRY A. SCANDRETT, WALTER J. CUMMINGS, AND GEORGE I. HAIGHT, TRUSTEES, CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD CO., IN THE AMOUNT OF $105.93, FOR THE COST OF REPAIRING A CERTAIN RAILROAD COAL TRESTLE AT THE VETERANS' ADMINISTRATION HOSPITAL, FORT SNELLING, MINN.

UNDER THE CONTRACT NO. VBC-140, DATED MARCH 19, 1927, ENTERED INTO BY AND BETWEEN H. E. BYRAM, MARK W. POTTER, AND EDWARD J. BRUNDAGE, AS RECEIVERS OF THE AFOREMENTIONED RAILROAD COMPANY, AND THE UNITED STATES, THE SAID RECEIVERS CONSTRUCTED APPROXIMATELY 1,371 FEET OF RAILWAY TRACK AND UNDERLYING STRUCTURE TO SERVE THE GOVERNMENT AT THE UNITED STATES VETERANS' HOSPITAL, FORT SNELLING, MINN. BY THE TERMS OF THE SAID CONTRACT THE GOVERNMENT AGREED IN RESPECT TO THE MAINTENANCE OF THE SPUR TRACK AS FOLLOWS:

THE GOVERNMENT SHALL MAINTAIN, REPAIR, AND RENEW THE SPUR TRACK AND SUPPORTING STRUCTURE BEYOND THE RIGHT OF WAY LINE AT ITS OWN EXPENSE, PROVIDED, HOWEVER, AND IT IS AGREED THAT IN THE EVENT THE GOVERNMENT FAILS TO MAINTAIN, REPAIR, AND RENEW SAID SPUR TRACK AND SUPPORTING STRUCTURE IN A MANNER SATISFACTORY TO THE RAILWAY COMPANY, THEN THE RAILWAY COMPANY MAY MAINTAIN, REPAIR, AND RENEW SAID SPUR TRACK AND SUPPORTING STRUCTURE AND THE GOVERNMENT HEREBY AGREES TO PAY THE RAILWAY COMPANY, ON RENDITION OF BILL THEREFOR, THE ENTIRE COST AND EXPENSE OF SUCH MAINTENANCE, REPAIR, AND RENEWAL.

IT APPEARS THAT DURING THE MONTH OF AUGUST 1936, THE CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD CO. BROUGHT A CREW OF MAINTENANCE WORKERS ON THE HOSPITAL PREMISES AND COMMENCED REPAIRING THE COAL TRESTLE WHICH CONSTITUTES PART OF THE SUPPORTING STRUCTURE OF THE AFORE-MENTIONED SPUR TRACK; THAT THE WORK WAS COMMENCED WITHOUT THE KNOWLEDGE OF ANYONE AT THE VETERANS' ADMINISTRATION FACILITY, AND THAT BEFORE THE PRESENCE OF THE WORKERS WAS NOTED, THE WORK WAS WELL UNDER WAY. THE ITEMIZED BILL RENDERED IN THE AMOUNT OF $105.93 FOR LABOR AND MATERIAL UTILIZED IN COMPLETING THIS MAINTENANCE WORK HAS BEEN CHECKED BY THE VETERANS' ADMINISTRATION DISTRICT ACCOUNTANT AND CERTIFIED AS CORRECT, AND THE DIRECTOR OF CONSTRUCTION, VETERANS' ADMINISTRATION, HAS RECOMMENDED PAYMENT ON THE VOUCHER, IN VIEW OF THE TERMS OF THE CONTRACT.

WHILE THE QUOTED PROVISION OF THE CONTRACT DOES NOT EXPRESSLY PROVIDE FOR PRIOR NOTICE TO THE VETERANS' ADMINISTRATION OF NEEDED REPAIRS, IT IMPOSES ON THE GOVERNMENT THE PRIMARY DUTY OF MAKING SUCH REPAIRS AND REASONABLY PRESUPPOSES THAT THE RAILROAD WILL GIVE DUE NOTICE THAT REPAIRS ARE NEEDED BEFORE IT PROCEEDS TO MAKE SUCH REPAIRS FOR THE ACCOUNT OF THE GOVERNMENT.

IN THIS INSTANCE, THE WORK HAVING BEEN PERFORMED AND THE GOVERNMENT HAVING RECEIVED THE BENEFIT THEREFROM, AND AS THE AMOUNT OF THE CLAIM APPEARS TO BE JUST AND REASONABLE, THE VOUCHER WILL BE CERTIFIED FOR PAYMENT, AND RETURNED IN DUE COURSE. HOWEVER, THE TRUSTEES OF THE AFORE- MENTIONED RAILROAD COMPANY SHOULD BE ADVISED THAT, IN VIEW OF THE FACT THAT THE GOVERNMENT HAS NO WAY TO ASCERTAIN THAT THE SPUR LINE TRACK AND SUPPORTING STRUCTURE ARE NOT IN REPAIR SATISFACTORY TO THE RAILROAD COMPANY, WITHOUT EXPRESS NOTICE OR ADVICE FROM THE RAILROAD COMPANY, NO REPAIRS SHOULD BE MADE IN THE FUTURE UNLESS THE MATTER HAS BEEN PREVIOUSLY CALLED TO THE ATTENTION OF THE PROPER VETERANS' ADMINISTRATION OFFICIALS FOR THEIR PRIOR ACTION.