B-159769, SEP. 20, 1966

B-159769: Sep 20, 1966

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THE AGREEMENT TO LEASE THESE PREMISES WAS ACCEPTED BY THE GOVERNMENT ON DECEMBER 19. ARISTOS WERE INVITED TO SUBMIT AN AGREEMENT TO LEASE THE EXPANDED PREMISES THEREIN DESCRIBED "IN ACCORDANCE WITH THE PRELIMINARY DRAWINGS. WHICH WAS MODIFIED AND AMENDED UNDER DATE OF NOVEMBER 26. CONSTRUCTION WAS BEGUN. ARISTOS MADE SEVERAL COMPLAINTS THAT DEMANDS WERE BEING MADE ON HIM BY THE DEPARTMENT WHICH EXCEEDED THE REQUIREMENTS OF HIS CONTRACT. ALL OF THE ITEMS IN CONTENTION HAVE BEEN RESOLVED WITH THE EXCEPTION OF THE LESSOR'S RESPONSIBILITY FOR INSTALLATION OF EXTERIOR LIGHTING IN THE PARKING AND MANEUVERING AREAS.'. WHICH WERE INCORPORATED INTO CLAIMANT'S AGREEMENT TO LEASE STATED AS FOLLOWS: "10.

B-159769, SEP. 20, 1966

TO THE POSTMASTER GENERAL:

WE REFER TO YOUR LETTER DATED JULY 26, 1966, FROM THE DEPUTY ASSISTANT POSTMASTER GENERAL REQUESTING AN OPINION WHETHER OUR OFFICE WOULD BE REQUIRED TO OBJECT IF YOUR DEPARTMENT PAID JAMES D. ARISTOS AND ELLA ARISTOS, HIS WIFE, HEREAFTER REFERRED TO AS CLAIMANTS, FOR INSTALLATION OF EXTERIOR LIGHTING ON THE PREMISES LOCATED AT ST. CLAIR SHORES, MICHIGAN. THE AGREEMENT TO LEASE THESE PREMISES WAS ACCEPTED BY THE GOVERNMENT ON DECEMBER 19, 1962.

THE LETTER OF JULY 26, 1966, FROM YOUR DEPARTMENT PRESENTS THE FOLLOWING FACTUAL DATA:

"BY LEASE BEARING DATE ON THE 22ND DAY OF SEPTEMBER 1958, THE POST OFFICE DEPARTMENT LEASED CERTAIN PREMISES AT ST. CLAIR SHORES, MICHIGAN, FROM JAMES D. ARISTOS AND ELLA ARISTOS, HIS WIFE (ALSO REFERRED TO AS CLAIMANTS). SUCH PREMISES HOUSED THE POST OFFICE AT ST. CLAIR SHORES. DURING THE NEXT FOUR YEARS, THE AREA SERVED BY THAT OFFICE EXPERIENCED A TREMENDOUS GROWTH IN POPULATION WITH THE RESULT THAT THE ABOVE QUARTERS BECAME COMPLETELY INADEQUATE. IN ORDER TO REMEDY THAT SITUATION, THE DEPARTMENT, UNDER AUTHORITY OF 39 UNITED STATES CODE 2102, PREPARED PRELIMINARY DRAWINGS RE-2289 AND RE-2289-A COVERING REMODELING AND ENLARGING THE EXISTING BUILDING AND THE PROVISION OF ADDITIONAL PARKING AND MANEUVERING AREA FOR THE FACILITY.

"MR. AND MRS. ARISTOS WERE INVITED TO SUBMIT AN AGREEMENT TO LEASE THE EXPANDED PREMISES THEREIN DESCRIBED "IN ACCORDANCE WITH THE PRELIMINARY DRAWINGS, THE CONSTRUCTION REQUIREMENTS FOR LEASED POST OFFICE FACILITIES, AND AS SPECIFICALLY ENUMERATED IN ALL ADDENDA ATTACHED AS RIDERS TO THIS AGREEMENT.' THEY SUBMITTED AN AGREEMENT TO LEASE, DATED OCTOBER 29, 1962, WHICH WAS MODIFIED AND AMENDED UNDER DATE OF NOVEMBER 26, 1962, AND ACCEPTED BY THE GOVERNMENT ON DECEMBER 19, 1962.

"THE CONTRACTORS HAD WORKING DRAWINGS PREPARED BY THEIR ARCHITECT AND SUBMITTED SUCH DRAWINGS TO THE CHICAGO REGIONAL OFFICE OF THE DEPARTMENT. BY LETTER OF MAY 14, 1963, THE CHIEF, ENGINEERING BRANCH, OF THE REGIONAL OFFICE GAVE TENTATIVE APPROVAL OF THE WORKING DRAWINGS, LISTING SOME 51 MODIFICATIONS AND ADDITIONS TO SUCH DRAWINGS WHICH WOULD BE REQUIRED. CONSTRUCTION WAS BEGUN.

"DURING THE COURSE OF CONSTRUCTION, MR. ARISTOS MADE SEVERAL COMPLAINTS THAT DEMANDS WERE BEING MADE ON HIM BY THE DEPARTMENT WHICH EXCEEDED THE REQUIREMENTS OF HIS CONTRACT. THAT CONTRACT DOES NOT INCLUDE A "DISPUTES" CLAUSE OF THE TYPE COMMON TO MOST GOVERNMENT CONTRACTS. ALL OF THE ITEMS IN CONTENTION HAVE BEEN RESOLVED WITH THE EXCEPTION OF THE LESSOR'S RESPONSIBILITY FOR INSTALLATION OF EXTERIOR LIGHTING IN THE PARKING AND MANEUVERING AREAS.'

THE SPECIFICATIONS ENTITLED "CONSTRUCTION REQUIREMENTS FOR LEASED POSTAL FACILITIES" (POD PUBLICATION 39, JULY 1961), WHICH WERE INCORPORATED INTO CLAIMANT'S AGREEMENT TO LEASE STATED AS FOLLOWS:

"10. EXTERIOR LIGHTING.--- MOTOR VEHICLE PARKING AND MANEUVERING AREAS AND PATRON'S PARKING AREAS SHALL BE ILLUMINATED WITH OVAL SHAPED PRISMATIC REFRACTOR ROADWAY LIGHTING FIXTURES, USING COLOR IMPROVED MERCURY LAMPS WITH TYPE IV IES LIGHT PATTERN. PROVIDE 0.8 TO 1.0 FOOT CANDLES OF MAINTAINED ILLUMINATION. INSTALL FIXTURES ON 25 FT. ALUMINUM OR COATED STEEL POLES WITH UPSWEPT ARMS AND PREFERABLY LOCATED AT THE PROPERTY LINE. PROVIDE SUPPLEMENTARY LIGHTING AS REQUIRED FOR EXTERIOR STAIRS AND ENTRANCES.'

GENERAL NOTE NO. 1 ON THE DRAWING RE-2289, THE PRELIMINARY DRAWING PREPARED BY YOUR DEPARTMENT, STATES AS FOLLOWS:

"ALL WORK SHALL COMPLY WITH P.O.D. PUBLICATION 39 SPECIFICATIONS "BIDDERS INSTRUCTIONS CONSTRUCTION REQUIREMENTS FOR LEASED POSTAL FACILITIES" DATED JULY, 1961. IN CASE OF A DIFFERENCE BETWEEN THE DRAWING AND THE SPECIFICATIONS, THE DRAWING SHALL GOVERN. SEE PAR. "H" - PAGE 2 REGARDING COMPLIANCE WITH CODES.'

THE LETTER OF JULY 26, 1966, FROM YOUR DEPARTMENT, ADVISES THAT NEITHER THE TENTATIVE DRAWINGS WHICH WERE PREPARED BY YOUR DEPARTMENT NOR THE WORKING DRAWINGS SUBMITTED BY THE CONTRACTORS MADE ANY REFERENCE TO EXTERIOR LIGHTING OF THE PARKING AND MANEUVERING AREAS. WE HAVE BEEN ADVISED BY MR. E. B. WHITE, SUPERVISORY ATTORNEY ADVISOR, OF YOUR DEPARTMENT, THAT EXTERIOR LIGHTING WAS NOT REQUIRED BY THE SPECIFICATIONS UNDER THE 1958 LEASE AND WAS NOT FURNISHED BY THE CLAIMANT. MR. WHITE ALSO ADVISED THAT THE CLAIMANTS WILL NOT INSTALL THE EXTERIOR LIGHTING UNTIL A DECISION IS MADE REGARDING PAYMENT FOR SUCH INSTALLATION.

THE LETTER OF JULY 26, 1966, ADVISES THAT IT IS THE POSITION OF YOUR DEPARTMENT THAT THERE IS NO INCONSISTENCY BETWEEN THE DRAWINGS AND SPECIFICATIONS AND THAT THERE IS NO NEED TO SHOW A MATTER ON THE DRAWINGS WHICH WAS COVERED IN THE SPECIFICATIONS. OUR ADVICE HAS BEEN REQUESTED AS TO WHETHER OUR OFFICE WOULD BE REQUIRED TO OBJECT IF CLAIMANTS WERE PAID FOR FURNISHING EXTERIOR LIGHTING.

CLAIMANT'S CONTRACT DOES NOT CONTAIN THE USUAL CLAUSE PROVIDING THAT ANYTHING MENTIONED IN THE SPECIFICATIONS AND NOT SHOWN ON THE DRAWINGS, OR SHOWN ON THE DRAWINGS AND NOT MENTIONED IN THE SPECIFICATIONS, SHALL BE OF LIKE EFFECT AS IF SHOWN OR MENTIONED IN BOTH.

WE HAVE NOT FOUND ANY AUTHORITY WHICH HAS DEFINED WHAT WOULD CONSTITUTE A "DIFFERENCE" AS THAT WORD IS USED ON THE DRAWINGS IN GENERAL NOTE NO. 1, QUOTED ABOVE. THE LETTER OF JULY 26, 1966, FROM YOUR DEPARTMENT, STATES THAT CLAIMANTS HAVE NOT BEEN PAID FOR FURNISHING EXTERIOR LIGHTING BECAUSE THERE WAS NO "INCONSISTENCY" BETWEEN THE DRAWINGS AND SPECIFICATIONS. WHILE THE MEANINGS OF THE WORDS "DIFFERENCE" AND "INCONSISTENCY" ARE CLOSELY RELATED WE DO NOT THINK THE WORDS CAN BE USED INTERCHANGEABLY. CONSEQUENTLY, IN THE CIRCUMSTANCES, CONSIDERING THAT CLAIMANTS WERE NOT REQUIRED TO FURNISH EXTERIOR LIGHTING UNDER THE SPECIFICATIONS OF THE 1958 LEASE, AND CONSIDERING THAT THE DRAWINGS UNDER THE 1962 LEASE DID NOT SHOW THE REQUIREMENT FOR EXTERIOR LIGHTING, WE WOULD NOT, IN THIS CASE, OBJECT IF YOUR DEPARTMENT PAID THE CLAIMANTS FOR FURNISHING THE EXTERIOR LIGHTING.

WE ARE RETURNING THE ENCLOSURES TRANSMITTED WITH THE LETTER OF JULY 26, 1966, AS REQUESTED.