B-146487, SEP. 22, 1961

B-146487, SEP. 22, 1961

TO GANNON AND GANNON:

REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1961, REQUESTING REVIEW OF SETTLEMENT OF JUNE 27, 1961, WHICH DISALLOWED THE CLAIM OF EDWARD AND MARGARET ALBRIGHT FOR $1,221.65 IN LIEU OF RESTORATION OF A ONE FAMILY DWELLING AT HAMBURG, NEW YORK, LEASED TO THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY FOR HOUSING PURPOSES UNDER LEASE NO. W DA-30-075- ENG-8745, DATED OCTOBER 14, 1958.

THE LEASE PROVIDED FOR A TERM BEGINNING NOVEMBER 1, 1958, THROUGH JUNE 30, 1959, AND FOR AUTOMATIC RENEWAL FROM YEAR TO YEAR THEREAFTER NOT TO EXTEND BEYOND JUNE 30, 1968. PARAGRAPH 12 PROVIDED FOR TERMINATION BY EITHER PARTY AT ANY TIME BY GIVING 60 DAYS WRITTEN NOTICE AND THAT NO RENT WOULD ACCRUE AFTER THE EFFECTIVE DATE OF TERMINATION. PARAGRAPH 7 REQUIRED THE GOVERNMENT TO SURRENDER THE PREMISES UPON TERMINATION OF THE LEASE AND, IF REQUIRED BY THE LESSOR, THE GOVERNMENT WAS REQUIRED WITHIN 30 DAYS THEREAFTER, OR WITHIN SUCH ADDITIONAL TIME AS MUTUALLY AGREED UPON, TO RETURN THE PREMISES IN AS GOOD CONDITION AS EXISTING AT THE TIME OF ENTERING UPON SAME, REASONABLE ORDINARY WEAR AND TEAR AND DAMAGES BY THE ELEMENTS OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAD NO CONTROL EXCEPTED. THIS RESTORATION OBLIGATION, HOWEVER, WAS SPECIFICALLY SUBJECT TO THE REQUIREMENT OF A WRITTEN NOTICE BY THE LESSORS AT LEAST 20 DAYS BEFORE THE EXPIRATION OR TERMINATION OF THE LEASE.

BY LETTER DATED JANUARY 25, 1960, THE LESSORS WERE NOTIFIED OF THE GOVERNMENT'S ELECTION TO CANCEL THE LEASE, EFFECTIVE AS OF MARCH 31, 1960, AND THEY WERE REQUESTED TO EXECUTE AND RETURN TO THE CONTRACTING OFFICER QUADRUPLICATE COPIES OF A "RELEASE" FORWARDED THEREWITH. THE LESSORS FAILED TO COMPLY WITH THE ABOVE REQUEST AND, SINCE NOTHING FURTHER WAS HEARD FROM THEM, A TELEPHONE INQUIRY WAS MADE TO THEM ON JULY 13, 1960, CONCERNING THE RELEASES. THIS INQUIRY WAS FOLLOWED BY YOUR LETTER OF JULY 20, 1960, WHEREIN YOU ADVISED THE CONTRACTING OFFICER THAT YOU HAD WITHHELD SIGNING THE RELEASES UNTIL THE PARTIES COULD COME TO AN UNDERSTANDING. THERE WAS ENCLOSED WITH YOUR LETTER AN ITEMIZED ESTIMATE FOR REPAIRS IN THE AMOUNT OF $1,050.25. IN REPLY OF AUGUST 5, 1960, YOU WERE ADVISED BY THE CONTRACTING OFFICER THAT THE ESTIMATES SUBMITTED ON BEHALF OF THE LESSORS COULD NOT BE CONSIDERED BECAUSE OF THEIR FAILURE TO COMPLY WITH THE 20-DAY WRITTEN RESTORATION NOTICE REQUIREMENT OF PARAGRAPH 7 OF THE LEASE.

THEREAFTER, IN YOUR LETTER OF AUGUST 9, 1960, YOU ADVISED THE CONTRACTING OFFICER THAT YOU WERE FAMILIAR WITH THE REQUIREMENTS OF PARAGRAPH 7 OF THE LEASE, SINCE YOU HAD A COPY OF THE LEASE IN YOUR POSSESSION SINCE MR. GOLDEN, ONE OF THE ARMY'S TENANTS, MOVED FROM THE PREMISES; THAT THE RELEASE FORMS WERE NOT EXECUTED BY THE LESSORS UPON YOUR ADVICE; THAT, WITH A VIEW TO DISPOSING OF THE MATTER, YOU COMMUNICATED WITH ARMY OFFICERS IN THE DISTRICT RELATIVE TO THE MATTER, INCLUDING COLONEL VALLARD SMITH, MAJOR RICHARD FERRIS, WARRANT OFFICER TOLIN, MAJOR FLEISCHMAN AND OTHERS; THAT SHORTLY AFTER THE CANCELLATION NOTICE OF JANUARY 25, 1960, WAS RECEIVED YOU WERE ADVISED THAT THE ARMY WAS WORKING ON THE MATTER; AND THAT YOU SHOULD NOTIFY THE ENGINEERS AT FORT NIAGARA AND THEY WOULD MAKE THE NECESSARY REPAIRS. IN THE SAME LETTER YOU STATED THAT YOU WERE NECESSARILY DELAYED IN SUBMITTING AN ESTIMATE SINCE YOU WERE NOT PERMITTED ENTRY TO THE LEASED PREMISES AND YOU HAD NO KEY AFTER THE LEASE WAS TERMINATED; THAT YOU WAITED IN VAIN FOR SOME ACTION ON THE PART OF THE ARMY AFTER MR. GOLDEN MOVED OUT BUT NOTHING WAS HEARD UNTIL YOU RECEIVED A COMMUNICATION FROM MR. BURNS; AND THAT YOU ADVISED MR. BURNS THAT YOU WOULD SEND HIM AN ESTIMATE OF THE REQUIRED REPAIRS, WHICH YOU DID ON JULY 20, 1960.

IN REPLY OF AUGUST 16, 1960, THE CONTRACTING OFFICER INVITED YOUR ATTENTION TO PARAGRAPH 9 OF THE LEASE WHICH PERMITS THE LESSORS A RIGHT OF ENTRY UPON THE PREMISES FOR INSPECTION AND MAINTENANCE THEREOF. YOU WERE ADVISED THAT THE RECORDS OF THE CONTRACTING OFFICER FAILED TO DISCLOSE THE RECEIPT OF ANY COMPLAINTS, EITHER BY THE LESSORS OR BY YOU, REGARDING ANY RESTRICTIONS AGAINST ENTRANCE ON THE PREMISES FOR INSPECTION PURPOSES; THAT PARAGRAPH 13 OF THE LEASE REQUIRED THAT ANY NOTICE UNDER THE TERMS OF THE LEASE SHOULD BE IN WRITING BY A DULY AUTHORIZED REPRESENTATIVE OF THE PARTY GIVING SUCH NOTICE AND, IF GIVEN BY THE LESSORS, IT SHOULD BE ADDRESSED TO THE DISTRICT ENGINEER AT THE STATED ADDRESS; AND THAT THE RESTORATION NOTICE WAS NOT GIVEN TO HIS OFFICE UNTIL YOUR LETTER OF JULY 20, 1960.

BY SETTLEMENT OF JUNE 27, 1961, THE CLAIM IN THE REVISED AMOUNT OF $1,221.65 WAS DISALLOWED AS ADMINISTRATIVELY RECOMMENDED.

AS STATED IN THE SETTLEMENT, THE GENERAL RULE IS THAT THE REQUIREMENT FOR TIMELY WRITTEN NOTICE OF THE LESSOR'S INTENTION TO REQUIRE RESTORATION, SUCH AS PROVIDED FOR UNDER THE PROVISIONS OF PARAGRAPH 7 OF THE LEASE, IS A CONDITION PRECEDENT TO THE LESSOR'S RIGHT TO RESTORATION. 6 COMP. GEN. 533. WHILE IN THE CASE OF ELIZABETH SMITH V. UNITED STATES, 96 CT.CL. 326, IT WAS HELD THAT SUCH NOTICE REQUIREMENT MAY BE WAIVED WHERE THERE HAS BEEN SUBSTANTIAL COMPLIANCE WITH SUCH REQUIREMENT, AND IT IS SHOWN THAT THE AUTHORIZED GOVERNMENT REPRESENTATIVES HAD FULL KNOWLEDGE OF THE LESSOR'S INTENTION TO REQUIRE RESTORATION AND DID NOT INTEND TO INSIST UPON STRICT COMPLIANCE, NOTHING HAS BEEN PRESENTED IN THE PRESENT INSTANCE WHICH MAY BE REGARDED AS SUFFICIENT TO TAKE THIS CASE OUT OF THE GENERAL RULE.

WHILE YOU NOW STATE THAT BEFORE YOU LEFT ON YOUR VACATION ON MARCH 1, 1960, A LETTER WAS WRITTEN TO THE ENGINEERS AT NIAGARA FALLS REQUESTING RESTORATION OF THE PREMISES, NO SUCH LETTER, OR COPY THEREOF, WAS ATTACHED TO THE ADMINISTRATIVE FILE TRANSMITTED TO THIS OFFICE FOR USE IN CONSIDERATION OF YOUR CLAIM. SO FAR AS THE RECORD SHOWS, THE FIRST WRITTEN REQUEST FOR RESTORATION WAS MADE BY YOUR LETTER OF JULY 20, 1960, ALMOST FOUR MONTHS AFTER THE EFFECTIVE DATE OF TERMINATION OF THE LEASE, AND THE CLAIMS OFFICER HAS SPECIFICALLY STATED THAT "NO NOTIFICATION WHATSOEVER WAS GIVEN BY THE LESSORS PRIOR TO 20 JULY 1960.' THE RECORD SHOWS THAT YOU WERE SO ADVISED BY THE LETTER DATED AUGUST 5, 1960, FROM THE CONTRACTING OFFICER, AND THAT IN YOUR REPLY THERETO OF AUGUST 9, 1960, YOU MADE NO REFERENCE TO THE LETTER YOU NOW STATE WAS WRITTEN TO THE ENGINEERS PRIOR TO LEAVING ON YOUR VACATION ON MARCH 1, 1960.

AS TO THE STATEMENT IN YOUR LETTER OF AUGUST 9, 1960, CONCERNING YOUR CONVERSATIONS WITH COLONEL SMITH, MAJOR FERRIS, WARRANT OFFICER TOLIN AND MAJOR FLEISCHMAN, THE CLAIMS OFFICER WHO INVESTIGATED THE CLAIM HAS REPORTED THAT IT APPEARS THAT AT NO TIME WAS THERE A CONCISE OR SPECIFIC CLAIM MADE IN REGARD TO ANY DAMAGES OR RESTORATION OF THE PROPERTY. SUPPORT OF THIS STATEMENT THERE ARE ATTACHED TO THE FILE AFFIDAVITS AND SWORN STATEMENTS FROM ALL OF THE PERSONNEL REFERRED TO IN YOUR LETTER OF AUGUST 9, 1960, EXCEPT WARRANT OFFICER TOLIN, AS WELL AS SEVERAL OTHERS WHO WERE FAMILIAR WITH THE MATTER.

IN A WRITTEN STATEMENT DATED DECEMBER 14, 1960, COLONEL SMITH STATED THAT TO THE BEST OF HIS KNOWLEDGE AND BELIEF NO WRITTEN OR ORAL DEMANDS FOR RESTORATION WERE MADE TO HIM BY EITHER YOU OR THE LESSORS; THAT DURING THE MONTH OF FEBRUARY OR MARCH 1960 YOU MENTIONED TO HIM THAT THE LESSORS WERE VERY UNHAPPY THAT THE LEASE WAS BEING TERMINATED; THAT NO FURTHER DISCUSSION ENSUED EXCEPT THAT HE ADVISED YOU THAT THE TERMINATION WAS NECESSARY; AND THAT, WHILE YOU HAVE DISCUSSED MANY MATTERS WITH HIM SINCE JANUARY 1960, TO THE BEST OF HIS KNOWLEDGE YOU HAVE NEVER DISCUSSED A CLAIM ON THE ALBRIGHT HOME NOR INFORMED HIM OF THE CLAIM YOU ARE NOW HANDLING.

IN AN AFFIDAVIT DATED DECEMBER 9, 1960, MAJOR FERRIS STATED THAT WHILE TO THE BEST OF HIS KNOWLEDGE HE WAS NEVER INFORMED BY EITHER YOU OR THE LESSORS OF A CLAIM FOR RESTORATION, HE DOES RECALL A TELEPHONE CONVERSATION WITH YOU, PROBABLY IN FEBRUARY OR MARCH 1960, IN WHICH YOU DISCUSSED SOME OTHER SUBJECTS AND THEN MENTIONED THAT THE LESSORS WERE DISSATISFIED WITH THE CONDITION OF THEIR PROPERTY. HE STATED, HOWEVER, THAT YOU DID NOT ITEMIZE THE ALLEGED DAMAGES OR IN ANY WAY GIVE HIM TO UNDERSTAND THAT YOU WERE IN THE PROCESS OF REGISTERING A FORMAL CLAIM AGAINST THE GOVERNMENT AND THAT IF THE LATTER HAD BEEN THE CASE HE WOULD HAVE REFERRED YOU TO THE LEASE, ADVISED YOU TO MAKE SURE THAT THE NEW YORK DISTRICT ENGINEER WAS NOTIFIED IN WRITING, AND HE WOULD ALSO HAVE RECORDED THE CONVERSATION.

IN A WRITTEN STATEMENT DATED DECEMBER 14, 1960, MAJOR FLEISCHMAN STATED THAT WHILE IT IS POSSIBLE YOU MENTIONED THE MATTER OF RESTORATION TO HIM DURING THE COURSE OF SOCIAL CONVERSATION, HE HAD NO RECOLLECTION THEREOF AND THAT IF YOU HAD DISCUSSED IT WITH HIM HE WOULD HAVE REFERRED THE MATTER TO THE HOUSING OFFICER, SINCE HE HAD NO DIRECT RESPONSIBILITY FOR THE LEASED HOUSING PROGRAM.

WHILE THE FILE CONTAINS NO STATEMENT OR AFFIDAVIT FROM WARRANT OFFICER TOLIN, THERE IS INCLUDED AMONG OTHER AFFIDAVITS AND STATEMENTS BY PERSONNEL FAMILIAR WITH THE MATTER AN AFFIDAVIT DATED DECEMBER 6, 1960, BY THE ADMINISTRATIVE ASSISTANT TO THE POST ENGINEER WHEREIN HE STATED THAT THE FOLDER IN THE POST ENGINEER'S OFFICE DID NOT REFLECT ANY INFORMATION PERTAINING TO THE CLAIM; THAT THE FOLDER CONTAINED NO LETTER TO INDICATE THAT THE LESSORS WOULD FILE A CLAIM; THAT TO THE BEST OF HIS KNOWLEDGE THE FOLDER CONTAINED NO RECORD OF A TELEPHONE DEMAND FOR RESTORATION FROM THE LESSORS; AND THAT HE NEVER RECEIVED ANY TELEPHONE CALL FROM THE LESSORS AND WAS NOT CONTACTED BY THEM IN THE MATTER.

SINCE THE ADMINISTRATIVE OFFICE HAS REPORTED THAT THERE IS NO RECORD OF THE RECEIPT OF THE LETTER WHICH YOU STATE WAS MAILED TO THE ENGINEERS AT NIAGARA FALLS PRIOR TO MARCH 1, 1960, AND IT IS NOT ESTABLISHED THAT THERE WAS SUBSTANTIAL COMPLIANCE WITH THE 20-DAY WRITTEN NOTICE REQUIREMENT OF PARAGRAPH 7 OF THE LEASE OR THAT THE GOVERNMENT'S AUTHORIZED REPRESENTATIVES HAD FULL KNOWLEDGE OF THE LESSORS' INTENTION TO REQUIRE RESTORATION, OUR OFFICE WOULD NOT BE JUSTIFIED IN AUTHORIZING ALLOWANCE OF ANY PART OF THE LESSORS' CLAIM EVEN IF OTHERWISE AUTHORIZED.