B-156391, APR. 19, 1965

B-156391, APR. 19, 1965

TO THE HONORABLE SECRETARY OF THE INTERIOR:

BY LETTER DATED MARCH 23, 1965, WITH ENCLOSURES, THE DEPUTY ASSISTANT SECRETARY REQUESTED OUR DECISION AS TO WHETHER WE WOULD BE REQUIRED TO OBJECT TO A PROPOSED AMENDMENT OF A RELOCATION CONTRACT BETWEEN THE BUREAU OF RECLAMATION AND NATRONA COUNTY, WYOMING. THE AMENDMENT WOULD REIMBURSE THE COUNTY FOR ADDITIONAL CONSTRUCTION COSTS TO REMEDY DEFICIENCIES IN THE RELOCATION AND THE CONSTRUCTION OF THE NATRONA COUNTY ROAD BETWEEN ALCOVA DAM AND FREMONT CANYON TUNNEL, PREVIOUSLY PERFORMED BY THE BUREAU, SO AS TO PROVIDE SAFE OPERATING CONDITIONS AND ELIMINATION OF UNUSUAL MAINTENANCE COSTS, AND TO SECURE ACCEPTANCE OF THE ROAD BY THE COUNTY FOR OPERATION AND MAINTENANCE.

ON NOVEMBER 6, 1956, CONTRACT NO. 14-06-700-1237 WAS ENTERED INTO BETWEEN THE BUREAU AND THE COUNTY FOR THE RELOCATION, RECONSTRUCTION, AND EXTENSION OF AN EXISTING COUNTY ROAD BETWEEN ALCOVA, RED HILL, AND THE FREMONT CANYON TUNNEL. UNDER THE CONTRACT, THE BUREAU RELOCATED AND RECONSTRUCTED THE PORTION OF THE COUNTY ROAD BETWEEN ALCOVA AND RED HILL, AND CONSTRUCTED A NEW ACCESS ROAD FROM RED HILL TO FREMONT CANYON TUNNEL. THE BUREAU SPENT OVER $600,000 IN CONSTRUCTING AND IMPROVING THIS 9.4-MILE ACCESS ROAD UNDER THE CONTRACT AND IT IS REPORTED THAT THE MAINTENANCE OF THIS ROAD IS IMPORTANT TO THE EFFICIENT OPERATION OF THE FREMONT CANYON POWERPLANT WHICH IS SERVED BY THE ROAD.

THE CONTRACT PROVIDED IN PERTINENT PART THAT:

"2. THE UNITED STATES AGREES TO ACQUIRE AT ITS OWN COST AND EXPENSE RIGHTS-OF-WAY FOR THE CONSTRUCTION, RELOCATION, AND RECONSTRUCTION OF THE ACCESS ROAD, AND UPON COMPLETION OF SUCH RELOCATION AND CONSTRUCTION WORK SHALL CONVEY TO THE COUNTY BY QUIT CLAIM DEED EASEMENT RIGHTS-OF-WAY FOR SAID ACCESS ROAD: PROVIDED, HOWEVER, THAT THE UNITED STATES SHALL NOT BE REQUIRED TO PURCHASE RIGHTS-OF-WAY FOR THE ACCESS ROAD WHERE SUCH RIGHTS- OF-WAY ARE ALREADY OWNED BY THE COUNTY.

"4. PRIOR TO COMMENCING CONSTRUCTION OF THE ACCESS ROAD, OR THE AWARD OF A CONSTRUCTION CONTRACT THEREFOR, THE UNITED STATES AGREES TO SUBMIT TO THE COUNTY THE PLANS AND SPECIFICATIONS FOR SUCH CONSTRUCTION. THE COUNTY SHALL REVIEW SUCH PLANS AND SPECIFICATIONS AND WITHIN 10 DAYS AFTER RECEIPT THEREOF SHALL NOTIFY THE UNITED STATES IN WRITING OF ANY REVISIONS OR CHANGES IN SUCH PLANS OR SPECIFICATIONS DESIRED BY THE COUNTY. IF NO REVISIONS OR CHANGES ARE REQUESTED WITHIN THE TIME LIMITED, SUCH PLANS AND SPECIFICATIONS SHALL CONCLUSIVELY BE PRESUMED TO BE ACCEPTABLE TO THE COUNTY.

"5. A. WHEN CONSTRUCTION OF THE ACCESS ROAD HAS BEEN COMPLETED, THE OFFICER OF THE BUREAU OF RECLAMATION IN CHARGE OF THE GLENDO UNIT OF THE MISSOURI RIVER BASIN PROJECT SHALL NOTIFY THE COUNTY IN WRITING THAT THE WORK TO BE PERFORMED BY THE UNITED STATES UNDER THIS CONTRACT HAS BEEN COMPLETED. UNLESS WRITTEN NOTICE TO THE CONTRARY IS RECEIVED FROM THE COUNTY WITHIN 30 DAYS THEREAFTER, SUCH WORK SHALL BE CONCLUSIVELY PRESUMED TO BE ACCEPTED BY THE COUNTY AS SATISFACTORY.

"B. UPON THE COMPLETION AND ACCEPTANCE OF SUCH WORK AS HEREINABOVE PROVIDED, THE SAID ACCESS ROAD FROM ALCOVA DAM TO THE PROPOSED BRIDGE ACROSS THE NORTH PLATTE RIVER AT FREMONT CANYON SHALL BE OPERATED AND MAINTAINED BY THE COUNTY AT ITS SOLE COST AND EXPENSE, IT BEING EXPRESSLY UNDERSTOOD AND AGREED THAT THE COUNTY'S OBLIGATION FOR OPERATION AND MAINTENANCE SHALL COMMENCE UPON THE COMPLETION AND ACCEPTANCE OF THE WORK TO BE PERFORMED UNDER THIS CONTRACT REGARDLESS OF WHETHER OR NOT THE CONSTRUCTION OF FREMONT CANYON POWER PLANT HAS THEN BEEN COMPLETED.

"C. IT IS FURTHER AGREED THAT THE MINIMUM STANDARDS FOR OPERATION AND MAINTENANCE FOR THE ACCESS ROAD SHALL CONFORM WITH THOSE CUSTOMARILY USED FOR COMPARABLE STATE SECONDARY ROADS AND THE ROADWAY SHALL BE CLEARED OF SNOW, DEBRIS OR OTHER OBSTRUCTIONS TO ALLOW NORMAL VEHICULAR TRAFFIC IN EITHER DIRECTION AT LEAST ONCE EACH 24-HOUR DAY BETWEEN ALCOVA DAM AND THE PROPOSED BRIDGE ACROSS THE NORTH PLATTE RIVER AT FREMONT CANYON.'

AFTER THE ROAD WAS COMPLETED BY THE BUREAU IN AUGUST 1958, THE COUNTY COMMISSIONERS DETERMINED THAT THE ROAD DID NOT MEET WYOMING SECONDARY HIGHWAY STANDARDS, AND THEY HAVE CONSISTENTLY REFUSED TO ACCEPT THE ROAD INTO THE COUNTY ROAD SYSTEM OR TO MAINTAIN IT AS REQUIRED BY PARAGRAPH 5C OF THE CONTRACT. ON AUGUST 31, 1961, THE COMMISSIONERS AGREED TO MAINTAIN THE ROAD IF THE CONTRACT SNOW REMOVAL REQUIREMENT WAS ELIMINATED AND IF CERTAIN RECONSTRUCTION WORK WAS PERFORMED. EFFORTS WERE MADE BY THE BUREAU TO REACH AN AGREEMENT WITH THE COMMISSIONERS AS TO ACCEPTANCE AND MAINTENANCE OF THE ROAD BUT WITHOUT SUCCESS. HOWEVER, ON NOVEMBER 6, 1963, THE COMMISSIONERS PROPOSED THAT THE UNITED STATES PAY NATRONA COUNTY $75,000 FOR THE IDENTIFIED ADDITIONAL CONSTRUCTION TO CORRECT DEFICIENCIES ON THIS ROAD, AND THAT THE COUNTY FURNISH AN ADDITIONAL $35,000 FOR COMPLETION OF THE REMAINING WORK. IF THIS PROPOSAL SHOULD BE SATISFACTORY TO THE BUREAU, THE COMMISSIONERS WOULD THEN OFFER TO ACCEPT THE ROAD AS A COUNTY ROAD. ON NOVEMBER 12, 1963, THE BUREAU REQUESTED A BREAKDOWN FROM THE COMMISSIONERS OF THE $110,000 ESTIMATE FOR THE COUNTY'S PROPOSED ROAD ADDITIONS. ON JANUARY 20, 1964, THE COMMISSIONERS FURNISHED A DETAILED ESTIMATE OF COST FOR SUCH ADDITIONS WHICH TOTALED $139,011.57, AND REQUESTED THE UNITED STATES TO PAY $75,000 OF THIS COST ESTIMATE. THE COUNTY WOULD THEN ACCEPT THE ROAD, FURNISH THE REMAINING $64,011.57, AND CONSTRUCT SAID ADDITIONS TO THE ROAD WITHIN THE SUCCEEDING 24 MONTHS AFTER THE UNITED STATES MADE AN INITIAL PAYMENT, AND THE COUNTY WOULD ACCEPT THE ROAD FOR MAINTENANCE UPON THE UNITED STATES PAYMENT IN FULL BEING MADE.

ON FEBRUARY 24, 1964, THE BUREAU OFFERED THE COUNTY $43,000 FOR THE ADDITIONAL CONSTRUCTION NECESSARY TO CORRECT THE DEFICIENCIES, PROVIDED IT WOULD ACCEPT THE ROAD INTO THE COUNTY ROAD SYSTEM, PERFORM THE CONSTRUCTION WORK INDICATED WITHIN 24 MONTHS AFTER PAYMENT, AND IMMEDIATELY PERFORM MAINTENANCE AS REQUIRED BY THE ORIGINAL RELOCATION CONTRACT.

THE COUNTY COMMISSIONERS REMAINED ADAMANT IN THEIR DEMAND THAT THE UNITED STATES BEAR A PART OF THE FINANCIAL BURDEN OF THE RECONSTRUCTION OF THE ROAD TO SECONDARY ROAD STANDARDS IN CONSIDERATION OF ITS ACCEPTANCE AND MAINTENANCE OF THE ROAD. NOTWITHSTANDING THE PREVIOUS POSITION TAKEN BY THE BUREAU THAT THE ROAD WAS CONSTRUCTED TO STANDARDS SET FORTH IN THE CONTRACT AND AGREED TO BY THE COUNTY, THE CONTRACTING OFFICER HAS DETERMINED, AS A MATTER OF FACT, THAT CONSTRUCTION OF THE ROAD WAS DEFICIENT IN THE FOLLOWING RESPECTS:

"1. THE CRITERIA APPLIED IN DETERMINING THE NEED FOR GUARDRAIL WAS BASED UPON THE DIFFERENCE IN ELEVATION OF THE NATURAL GROUND LEVEL AT THE CENTER OF THE ROAD AND THE ELEVATION OF THE CENTERLINE OF THE ROAD AS CONSTRUCTED. IT IS NOW FOUND THAT THIS WAS INVALID CRITERIA, AND THAT THE CRITERIA SHOULD HAVE BEEN BASED UPON THE STEEPNESS OF THE TERRAIN AND THE SHOULDER HEIGHT AT THE OUTSIDE EDGE OF THE ROAD. AT LEAST 3,320 FEET OF GUARDRAIL WOULD BE REQUIRED TO REMEDY THIS DEFICIENCY.

"2. THE CULVERT AT STATION 149 PLUS 22 SHOULD HAVE HAD A LARGER CAPACITY, I.E., A DIAMETER OF 60 INCHES, INSTEAD OF 36 INCHES, AS ACTUALLY CONSTRUCTED. THE FAILURE OF THE GOVERNMENT TO PROVIDE AN ADEQUATE CULVERT RESULTED EITHER FROM DEFICIENT DESIGN OR FROM MUTUAL MISTAKE OF THE PARTIES AS TO THE AMOUNT OF RUNOFF WHICH IT WOULD BE NECESSARY TO PROVIDE FOR AT THIS LOCATION.

"3. THE CONSTRUCTION OF A "V" DITCH AT THE CUT SIDE OF THE ROAD IN ALL CUT SECTIONS WAS A DEPARTURE FROM THE REQUIREMENTS OF DRAWING NO. 499-703- 518 AND, THEREFORE, WAS NOT IN COMPLIANCE WITH THE TERMS OF THE 1956 CONTRACT. AN EXCAVATION OF A MINIMUM BORROW DITCH OF FOUR FEET IN WIDTH WOULD BE NECESSARY, NOT ONLY TO COMPLY WITH THE TERMS OF THE CONTRACT, BUT TO MEET REASONABLE DESIGN STANDARDS. EVEN IF THE "V" DITCH, AS CONSTRUCTED BY THE GOVERNMENT DID COMPLY WITH THE CONTRACT, THERE IS STILL THE QUESTION OF, SINCE THE DESIGNS WERE PREPARED BY THE BUREAU OF RECLAMATION, AND SINCE THE COUNTY COMMISSIONERS RELIED UPON THE BUREAU TO PROVIDE A REASONABLY ADEQUATE DESIGN, WHETHER THE COUNTY WOULD HAVE AVAILABLE REMEDIES AGAINST THE GOVERNMENT, EITHER FOR PREPARATION OF DEFICIENT DESIGN, OR BASED UPON MUTUAL MISTAKE.'

BASED ON THE FOREGOING, THE CONTRACTING OFFICER HAS CONCLUDED THAT SETTLEMENT OF THE MATTER ON THE BASIS WHICH THE COUNTY HAS OFFERED TO ACCEPT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT. THIS SETTLEMENT WOULD BE ACCOMPLISHED BY THE PROPOSED AMENDMENT WHICH WOULD PROVIDE FOR A PAYMENT TO THE COUNTY OF AN AMOUNT NOT TO EXCEED $75,000 FOR THE PERFORMANCE OF STIPULATED CONSTRUCTION WORK AND ADDITIONS TO THE ROAD, AND THEREAFTER WOULD OBLIGATE THE COUNTY TO ACCEPT THE ROAD AND TO MAINTAIN IT IN ACCORDANCE WITH PARAGRAPH 5C OF THE CONTRACT. THE PROPOSED AGREEMENT WOULD ALSO OBLIGATE THE GOVERNMENT TO MAKE AN ADVANCE PAYMENT OF $45,000 TO THE COUNTY FOLLOWING EXECUTION THEREOF IN CONSIDERATION OF THE COUNTY'S UNDERTAKING TO PERFORM ALL FUTURE DAY TO-DAY MAINTENANCE AS CONTEMPLATED BY PARAGRAPH 5C. ATTACHED AS ENCLOSURE 6 TO THE MARCH 23, 1965, LETTER IS A DOCUMENT ENTITLED "JUSTIFICATION FOR MAINTENANCE OF ALCOVA-FREMONT CANYON ACCESS ROAD" WHICH SHOWS THAT THE GOVERNMENT WOULD HAVE TO BEAR COSTS OF $7,090 PER YEAR, CAPITALIZED AT 3 PERCENT FOR 50 YEARS, OR $182,000, IF THE AGREEMENT IS NOT EXECUTED.

THE FILE BEFORE US CONTAINS SUFFICIENT INFORMATION TO JUSTIFY EXECUTION OF THE PROPOSED AGREEMENT. WE NOTE THAT BY THE EXPENDITURE OF THE ADDITIONAL $75,000 THE COUNTY WILL ACCEPT THE ROAD WITHOUT RESERVATION AND WILL UNQUALIFIEDLY MAINTAIN THE ROAD ON THE BASIS OF WYOMING STATE SECONDARY STANDARDS IN STRICT ACCORDANCE WITH PARAGRAPH 5C OF THE ORIGINAL CONTRACT.

THE RECORD SHOWS THAT, ALTHOUGH THE COUNTY HAD AGREED TO THE CONTRACT PLANS AND SPECIFICATIONS, THE ROAD CONSTRUCTION WAS DEFICIENT AND CONTRARY TO WYOMING SECONDARY ROAD STANDARDS. INASMUCH AS PARAGRAPH 5C OF THE CONTRACT REQUIRED THE COUNTY TO MAINTAIN THE ACCESS ROAD IN ACCORDANCE WITH THE MINIMUM STANDARDS CUSTOMARILY USED FOR STATE SECONDARY ROADS IT WOULD SEEM THAT CONFORMANCE TO STATE STANDARDS FOR SECONDARY ROAD CONSTRUCTION WAS AN IMPLIED REQUIREMENT OF THE CONTRACT AND A CONDITION PRECEDENT TO ACCEPTANCE BY THE COUNTY. THAT BEING THE CASE, IT WOULD APPEAR INCONSISTENT TO INSIST THAT THE COUNTY MAINTAIN A SUBSTANDARD ROAD WHICH IT COULD NOT ACCEPT INTO THE COUNTY ROAD SYSTEM.

ACCORDINGLY, AND SINCE REPRESENTATIVES OF YOUR DEPARTMENT HAVE DETERMINED THAT THE EXECUTION OF THE PROPOSED AMENDMENT WILL RESULT IN A CONSIDERABLE SAVINGS TO THE GOVERNMENT WE HAVE NO OBJECTION TO ITS EXECUTION. REQUESTED THE PAPERS ACCOMPANYING THE LETTER OF MARCH 23, 1965, ARE RETURNED.