B-157225, OCT. 26, 1967

B-157225: Oct 26, 1967

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LESSOR WHO CLAIMS ADDITIONAL COMPENSATION UNDER LEASE-CONSTRUCTION CONTRACT FOR CONSTRUCTION OF STEPS ON BASIS THAT PRELIMINARY DRAWINGS DID NOT SHOW STEPS IS RESPONSIBLE FOR ADDITIONAL WORK BECAUSE UNDER LEASE- CONSTRUCTION CONTRACT. CONTRACTOR ASSUMES ARCHITECTURAL AND ENGINEERING RESPONSIBILITY AND COULD HAVE LEARNED CONDITION OF LAND REQUIRING WORK THEREFORE ADDITIONAL COMPENSATION MAY NOT BE ALLOWED. SINCE THE PUBLICATION PROVIDED THE LESSOR WAS TO CONSTRUCT SUCH STEPS AS WERE NECESSARY FOR ENTRY AND EGRESS. THE LESSOR WAS NOT ENTITLED TO ADDITIONAL COMPENSATION FOR THE WORK DESPITE THE ABSENCE OF STEPS ON THE PRELIMINARY POST OFFICE DEPARTMENT DRAWINGS. YOU DISAGREE WITH THIS CONCLUSION ON THE BASIS SUCH A HOLDING IS UNREASONABLE "IN THAT IT ABSOLVES THE GOVERNMENT OF ANY ERROR MADE BY THEIR ARCHITECTS AND ENGINEERS.

B-157225, OCT. 26, 1967

CONTRACTS - INCREASED COSTS - LEASE - CONSTRUCTION PROJECT DECISION TO HUBERT BLUHM REAFFIRMING DECISION OF AUG. 24, 1965, DENYING ADDITIONAL COMPENSATION UNDER LEASE-CONSTRUCTION CONTRACT FOR POSTAL FACILITY IN CHICAGO, ILLINOIS. LESSOR WHO CLAIMS ADDITIONAL COMPENSATION UNDER LEASE-CONSTRUCTION CONTRACT FOR CONSTRUCTION OF STEPS ON BASIS THAT PRELIMINARY DRAWINGS DID NOT SHOW STEPS IS RESPONSIBLE FOR ADDITIONAL WORK BECAUSE UNDER LEASE- CONSTRUCTION CONTRACT, CONTRACTOR ASSUMES ARCHITECTURAL AND ENGINEERING RESPONSIBILITY AND COULD HAVE LEARNED CONDITION OF LAND REQUIRING WORK THEREFORE ADDITIONAL COMPENSATION MAY NOT BE ALLOWED.

DECISION

TO MR. HERBERT BLUHM:

WE REFER TO YOUR LETTER OF JULY 26, 1967, REQUESTING RECONSIDERATION OF OUR DECISION B-157225 OF AUGUST 24, 1965, WHICH DENIED YOUR CLAIM FOR $3,267.55 AS ADDITIONAL COMPENSATION FOR STEPS CONSTRUCTED BY YOU INCIDENT TO THE REMODELING AND EXPANSION OF THE POST OFFICE FACILITY AT DUNNING STATION, CHICAGO, ILLINOIS, UNDER A LEASE CONSTRUCTION AGREEMENT.

UNDER THE "AGREEMENT TO LEASE" YOU AGREED TO ALTER AND ENLARGE AN EXISTING POST OFFICE FACILITY IN ACCORDANCE WITH POST OFFICE DEPARTMENT DRAWING NO. RE-2248 (TENTATIVE PLANS), DATED JULY 27, 1962, AND RE 2248A OF JULY 31, 1962. THESE DRAWINGS DEPICTED A BUILDING SITUATED ON A FLAT, LEVEL LOT, BUT IN FACT THE BUILDING SITE HAD AN OVERALL SLOPE OF SOME 30 INCHES, NECESSITATING THE CONSTRUCTION OF INTERIOR ENTRANCE STEPS. OUR PREVIOUS DECISION HELD THAT SINCE THE "GENERAL NOTES" IN THE TENTATIVE DRAWING PROVIDED THAT ALL WORK MUST COMPLY WITH POD PUBLICATION 39, SPECIFICATION "BIDDERS INSTRUCTIONS--CONSTRUCTION REQUIREMENT FOR LEASED POSTAL FACILITIES," DATED JULY 1961, AND SINCE THE PUBLICATION PROVIDED THE LESSOR WAS TO CONSTRUCT SUCH STEPS AS WERE NECESSARY FOR ENTRY AND EGRESS, THE LESSOR WAS NOT ENTITLED TO ADDITIONAL COMPENSATION FOR THE WORK DESPITE THE ABSENCE OF STEPS ON THE PRELIMINARY POST OFFICE DEPARTMENT DRAWINGS.

YOU DISAGREE WITH THIS CONCLUSION ON THE BASIS SUCH A HOLDING IS UNREASONABLE "IN THAT IT ABSOLVES THE GOVERNMENT OF ANY ERROR MADE BY THEIR ARCHITECTS AND ENGINEERS," AND THAT THE ,ADVANTAGE AND SUPERIOR KNOWLEDGE AND INFORMATION AS TO THE NEW STRUCTURE RESTS WITH THE P.O. DEPT.'

WE HAVE CAREFULLY REEXAMINED OUR PRIOR DECISION AND WE CONCLUDE IT IS A PROPER DISPOSITION OF THE MATTER. HOWEVER, WE FEEL SOME DISCUSSION OF THE DIFFERENCES BETWEEN THE LEASE-CONSTRUCTION METHOD OF OBTAINING FACILITIES FOR GOVERNMENT USE, AND THE OUTRIGHT CONSTRUCTION OF FACILITIES FOR THE GOVERNMENT ACCORDING TO GOVERNMENT-FURNISHED SPECIFICATIONS MIGHT CLARIFY OUR PREVIOUS HOLDING. GENERALLY WHEN THE GOVERNMENT CONSTRUCTS ITS OWN FACILITIES, THE FINAL PLANS, SPECIFICATIONS AND DETAIL DRAWINGS NEEDED FOR CONSTRUCTION ARE PREPARED BY ARCHITECTS AND ENGINEERS BEFORE INVITATIONS ARE ISSUED FOR BIDS. THESE COMPLETE PLANS AND SPECIFICATIONS ARE SUPPOSED TO BE ADEQUATE FOR USE IN CONSTRUCTING ALL PORTIONS OF THE STRUCTURE INCLUDING SUCH DIVERSE ASPECTS AS ARCHITECTURAL, MECHANICAL, STRUCTURAL,ELECTRICAL, VENTILATING AIR-CONDITIONING, HEATING, PLUMBING, SITE PLANNING AND LANDSCAPE WORK. THIS CONSTITUTES CONSTRUCTION STRICTLY ACCORDING TO GOVERNMENT-FURNISHED SPECIFICATIONS.

ON THE OTHER HAND, UNDER THE LEASE-CONSTRUCTION TECHNIQUE OF OBTAINING SUITABLE POSTAL FACILITIES, THE GOVERNMENT DOES NOT FURNISH FINAL CONSTRUCTION PLANS, DETAIL DRAWINGS OR PRECISE SPECIFICATIONS, BUT RATHER INVITES BIDDERS TO CONSTRUCT A FACILITY WHICH WILL SATISFY A GENERALLY DRAFTED PLAN ESTABLISHING THE GOVERNMENT'S NEEDS AND SETTING OUT GENERAL MINIMUM CONSTRUCTION STANDARDS WHICH MUST BE OBSERVED. THE LESSOR ASSUMES THE FULL BURDEN OF HIRING ARCHITECTS AND ENGINEERS TO PREPARE SUITABLE DETAILED DESIGN DRAWINGS AND CONSTRUCTION PLANS.

WHERE THE GOVERNMENT SETS FORTH ITS NEEDS IN GENERAL TERMS WHICH ARE, IN MANY RESPECTS, PERFORMANCE SPECIFICATIONS RATHER THAN PRECISE DESIGN SPECIFICATIONS, AND IS WILLING TO PAY THE COST OF HAVING THE SUCCESSFUL BIDDER PREPARE THE ARCHITECTURAL AND ENGINEERING DRAWINGS, WE DO NOT THINK IT IS INAPPROPRIATE FOR THE LESSOR TO ASSUME THE COST OF ADAPTING THE GENERAL INVITATION REQUIREMENTS TO THE REALITIES OF A PARTICULAR GEOGRAPHICAL LOCATION. THIS MEANS THE LESSOR HAS THE RESPONSIBILITY FOR DETERMINING WHETHER STEPS ARE REQUIRED IN THIS SPECIFIC INSTANCE, AND, IF NEEDED, THE LESSOR ASSUMES THE RESPONSIBILITY FOR LOCATING, DESIGNING, AND CONSTRUCTING THE STEPS WITHIN THE LIMITS SET OUT IN POD PUBLICATION 39.

THE CONTRACT CLAUSES WHICH YOU CONTEND UNREASONABLY ABSOLVE THE GOVERNMENT OF LIABILITY, INCLUDING THOSE SET OUT IN POD PUBLICATION 39, DISCUSSED IN OUR EARLIER DECISION, IF CONSIDERED WITHIN THE CONTEXT OF THE POST OFFICE DEPARTMENT'S GENERAL PERFORMANCE ORIENTED PLANS AND REQUIREMENTS, REFLECT AN UNDERSTANDABLE POLICY OF PLACING THE RESPONSIBILITY FOR SUCH ITEMS AS STEPS UPON THE PARTY RESPONSIBLE FOR THE DETAILED DESIGN AND CONSTRUCTION OF THE FACILITY.

WE FEEL THE "AGREEMENT TO LEASE," TOGETHER WITH THE PRELIMINARY DRAWINGS AND POD PUBLICATION 39 CLEARLY CONVEYED THE GOVERNMENT'S INTENTION TO SO LIMIT ITS DUTIES AND RESPONSIBILITIES UNDER THIS CONTRACT. FURTHER, NOTHING IN THE RECORD CONTRADICTS THE ASSUMPTION THAT YOU KNOWINGLY BOUND YOURSELF NOT ONLY TO CONSTRUCT AND LEASE THE POSTAL FACILITY IN QUESTION, BUT ALSO TO PROVIDE THE NECESSARY ENGINEERING AND DESIGN WORK INCIDENT TO CONSTRUCTION. THEREFORE, WE CANNOT AGREE THAT IT WAS UNREASONABLE TO PLACE THE RESPONSIBILITY FOR DETERMINING THE NEED FOR INTERIOR STEPS IN THE SUBJECT FACILITY ON THE LESSOR.

YOU ALSO EXPRESS DISSATISFACTION WITH OUR PRIOR DECISION ON THE GROUNDS THAT BECAUSE THE GOVERNMENT HAD SUPERIOR KNOWLEDGE AND INFORMATION REGARDING WHAT IT WANTED IN THE NEW STRUCTURE, AND STEPS WERE NOT SHOWN ON THE PRELIMINARY DRAWINGS, YOU ASSUMED THE GOVERNMENT DETERMINED STEPS WERE NOT NEEDED.

THIS PROBLEM, WE FEEL, HAS TWO ASPECTS, BOTH OF WHICH SHOULD BE RESOLVED IN THE FAVOR OF THE GOVERNMENT. THE FIRST IS WHETHER THE PLANS EXPRESSED THE GOVERNMENT'S NEEDS. PARAGRAPH N, CHAPTER 3 OF POD PUBLICATION 39, UNDER THE HEADING "STEPS" PROVIDES THAT THE STRUCTURE SHOULD HAVE SUCH STEPS "AS ARE ABSOLUTELY UNAVOIDABLE, DUE TO TOPOGRAPHY OR TO PROVIDE DRAINAGE.' BECAUSE THE GOVERNMENT HAD NO TOPOGRAPHICAL INFORMATION REGARDING YOUR PROPERTY, THE POST OFFICE DEPARTMENT COULD FURNISH NO MORE DETAILED GUIDANCE THAN THAT IT DESIRED SUCH STEPS AS WERE ESSENTIAL. THUS CONCLUDE THAT THE TENTATIVE PLANS WERE AS CORRECT AND COMPLETE AS THE CIRCUMSTANCES PERMITTED.

IF WE VIEW THE PROBLEM AS THE FAILURE OF THE LOT TO CONFORM TO THE TENTATIVE PLANS, THEN ANY ADVANTAGE AND SUPERIOR KNOWLEDGE CONCERNING THE TOPOGRAPHY OF YOUR PROPERTY WOULD APPEAR TO BE YOURS, FOR AS STATED BEFORE, THE GOVERNMENT DID NOT HAVE A SURVEY TAKEN OF YOUR PROPERTY, NOR DID THE GOVERNMENT MAKE ANY ALLEGATIONS CONCERNING THE PHYSICAL CHARACTERISTICS OF YOUR LOT. TO THE CONTRARY, UNDER PARAGRAPH A, OF POD PUBLICATION 39,"SITE" THE LESSOR ASSUMED EXPRESS RESPONSIBILITY FOR DETERMINING THE SITE CONDITIONS AND CORRELATING THE NEW POSTAL FACILITY WITH THE EXISTING STREET LEVELS AND SIDEWALK GRADES ESTABLISHED BY THE MUNICIPALITY.

THE TASK OF RELATING THE PROPOSED BUILDING TO THE SITE IS THUS PLACED UPON THE CONTRACTOR. IT IS OUR OPINION, THEREFORE, THAT YOU, AS OWNER OF THE LAND, HAD NO RIGHT TO RELY ON THE PRELIMINARY DRAWINGS, CLEARLY LABELED "TENTATIVE," TO ESTABLISH THE TOPOGRAPHY OF YOUR OWN PROPERTY. THE FACT THAT THE PROPERTY WAS A RECENT ACQUISITION, PURCHASED FOR THE EXPRESS PURPOSE OF SATISFYING THE POST OFFICE DEPARTMENT'S REQUIREMENTS DOES NOT ALTER THE FACT THAT YOU, AS OWNER OF THE LAND, WERE IN A BETTER POSITION TO OBTAIN INFORMATION ABOUT YOUR LAND THAN WAS THE POST OFFICE DEPARTMENT.

WE FEEL THESE TWO CONSIDERATIONS, YOUR ASSUMPTION OF ARCHITECTURAL AND ENGINEERING RESPONSIBILITY UNDER THE LEASE-CONSTRUCTION CONTRACT, AND THE FACT THAT THE UNANTICIPATED WORK RESULTED FROM A PHYSICAL CONDITION WHICH COULD REASONABLY BE PRESUMED TO BE WITHIN YOUR KNOWLEDGE AS OWNER OF THE LAND, REQUIRE THE CONCLUSION THAT NO ADDITIONAL CONSIDERATION IS DUE YOU FOR THE CONSTRUCTION OF INTERIOR STEPS IN CONNECTION WITH YOUR REMODELING AND EXPANSION OF THE POSTAL FACILITY AT DUNNING STATION, CHICAGO, ILLINOIS.

ACCORDINGLY, OUR PREVIOUS DECISION, B-157225, AUGUST 24, 1965, IS SUSTAINED.