B-134059, OCT. 25, 1957

B-134059, OCT. 25, 1957

TO MR. ERNEST W. VOGT, AUTHORIZED CERTIFYING OFFICER, WEATHER BUREAU, DEPARTMENT OF COMMERCE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 10, 1957 (FILE R03 3.2), WITH ENCLOSURES, TRANSMITTING THROUGH THE CHIEF, FISCAL SECTION, WEATHER BUREAU, A REQUEST FOR A DECISION AS TO WHETHER THE INTERLOCKING FENCE COMPANY, PEORIA, ILLINOIS, IS LIABLE FOR THE COST OF REPAIRING AN UNDERGROUND POWER CABLE SEVERED BY THE COMPANY'S SUBCONTRACTOR WHILE DIGGING HOLES FOR THE ERECTION OF A FENCE AROUND THE WEATHER BUREAU INSTRUMENT SITE AT PEORIA, ILLINOIS. YOUR REQUEST IS ACCOMPANIED BY AN UNPAID INVOICE IN THE AMOUNT OF $61.57, SUBMITTED BY OBERLANDER ELECTRIC, WHICH COMPANY, YOU STATE, REPAIRED THE DAMAGED POWER CABLE.

THE CONTRACT HERE INVOLVED REQUIRED THE INTERLOCKING FENCE COMPANY TO FURNISH THE NECESSARY LABOR AND MATERIALS REQUIRED FOR THE ERECTION OF A 40-FOOT FENCE AND TWO GATES AT THE WEATHER BUREAU INSTRUMENT SITE FOR THE AMOUNT OF $155.91. THE COMPANY PERFORMED THE REQUIRED WORK THROUGH A SUBCONTRACTOR AND WAS PAID THEREFOR AT THE CONTRACT PRICE. THE RECORD INDICATES THAT DURING THE PROGRESS OF THE WORK, MR. BLEVINS, THE SUB- CONTRACTOR WHO INSTALLED THE FENCE, WHILE DIGGING POST HOLES, DAMAGED AN UNDERGROUND POWER CABLE AT THE FENCE SITE; THAT THE SERVICES OF OBERLANDER ELECTRIC WERE PROCURED BY THE WEATHER BUREAU AT PEORIA, ILLINOIS, TO REPAIR THE DAMAGED CABLE; AND THAT THE INVOICE OF OBERLANDER ELECTRIC FOR THE REPAIR WORK WAS PRESENTED TO THE INTERLOCKING FENCE COMPANY FOR PAYMENT BUT THAT THE COMPANY REFUSED TO PAY THE AMOUNT OF THE INVOICE.

IN A LETTER DATED SEPTEMBER 5, 1057, THE IOWA NATIONAL MUTUAL INSURANCE COMPANY, PEORIA, ILLINOIS, THE COMPANY WHICH INSURED MR. BLEVINS, ADVISED THE ACTING FISCAL OFFICER, WEATHER BUREAU, KANSAS CITY, MISSOURI, THAT NEITHER THE INTERLOCKING FENCE COMPANY NOR THE SUBCONTRACTOR WERE ADVISED OF THE EXISTENCE OF THE UNDERGROUND CABLES AND THAT THE FENCE WAS PLACED AT THE LOCATION POINTED OUT BY OFFICIALS OF THE WEATHER BUREAU.

THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE INTERLOCKING FENCE COMPANY OR MR. BLEVINS, THE SUBCONTRACTOR WHO INSTALLED THE FENCE, WERE AT ANY TIME INFORMED BY THE WEATHER BUREAU OF THE FACT THAT THERE WERE PRESENT AT THE FENCE SITE UNDERGROUND POWER CABLES WHICH WOULD IMPEDE THE DIGGING OF POST HOLES FOR THE FENCE. SINCE THE UNDERGROUND CABLES WERE APPARENTLY HIDDEN AND NOT VISIBLE UPON INSPECTION, THERE WAS A DUTY INCUMBENT UPON THE WEATHER BUREAU TO MAKE SUCH FACT KNOWN TO EITHER THE INTERLOCKING FENCE COMPANY OR MR. BLEVINS PRIOR TO THE COMMENCEMENT OF THE WORK. IT WOULD APPEAR FROM THE RECORD THAT IT WAS THE GOVERNMENT'S DUTY TO NOTIFY THE COMPANY OR ITS SUBCONTRACTOR OF THE EXISTENCE OF SUCH POWER CABLES AT THE FENCE SITE, AND IN THE ABSENCE OF ANY SUCH NOTICE THE DAMAGE TO THE POWER CABLE MUST BE BORNE BY THE GOVERNMENT. FURTHERMORE, THE SUBJECT PURCHASE ORDER DOES NOT CONTAIN ANY PROVISION MAKING THE COMPANY LIABLE FOR DAMAGE TO GOVERNMENT PROPERTY. IT MUST BE HELD THAT ON THE PRESENT RECORD NEITHER THE INTERLOCKING FENCE COMPANY NOR ITS SUBCONTRACTOR ARE LIABLE FOR THE COST OF THE DAMAGE TO THE POWER CABLE.

ACCORDINGLY, THE INVOICE IN FAVOR OF OBERLANDER ELECTRIC, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT.