B-160927, MAY 10, 1967

B-160927, MAY 10, 1967

TO THE PUBLIC PRINTER:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF FEBRUARY 21, 1967, REQUESTING A DECISION ON A CLAIM PRESENTED BY THE GOVERNMENT PRINTING OFFICE TO THE GENERAL SERVICES ADMINISTRATION (GSA) FOR REIMBURSEMENT OF COSTS INCURRED FOR DEMURRAGE AND OVERTIME INCIDENT TO THE USE OF THE WAREHOUSE OF RANCONIA, VIRGINIA. SINCE THE CLAIM HAD PREVIOUSLY BEEN PRESENTED TO GSA AND PAYMENT DENIED, WE REQUESTED, AND HAVE NOW RECEIVED, A REPORT FROM GSA SETTING FORTH THEIR VIEWS IN THE MATTER.

THE FACTS WHICH GIVE RISE TO YOUR CLAIM AS SET FORTH IN YOUR LETTER ARE AS FOLLOWS:

"THERE IS A RAILROAD SPUR LOCATED ON THE GROUNDS OF THE FRANCONIA PROPERTY ON WHICH THE GOVERNMENT PRINTING OFFICE RELIES FOR THE DELIVERY OF STOCKS OF MATERIAL FOR STORAGE IN THE WAREHOUSE. THE GOVERNMENT THROUGH THE GENERAL SERVICES ADMINISTRATION IS RESPONSIBLE FOR MAINTAINING THE SPUR.

"AS A RESULT OF THE BLIZZARD DURING THE WEEK OF JANUARY 31 THROUGH FEBRUARY 3, 1966, SHIPMENTS COULD NOT BE TIMELY UNLOADED FROM FREIGHT CARS ON THE SPUR BECAUSE THE SWITCHES WERE FROZEN AND THE SHIPPING DOORS TO THE WAREHOUSE WERE BLOCKED BY SNOW. IN CONSEQUENCE, DEMURRAGE CHARGES IN THE AMOUNT OF $540.00 WERE ASSESSED AND PAID IN ACCORDANCE WITH THE TERMS OF THE CAR DEMURRAGE AGREEMENT BETWEEN THE GOVERNMENT PRINTING OFFICE AND THE RAILROAD. IN ADDITION, THE WEIGHT OF THE SNOW ON THE ROOF OF THE WAREHOUSE CAUSED SOME OF THE SUPPORTING TIMBERS TO CRACK, THREATENING COLLAPSE OF THE ROOF WITH POTENTIAL DAMAGE TO GOVERNMENT PRINTING OFFICE PROPERTY. IN ORDER TO PERMIT THE GENERAL SERVICES ADMINISTRATION CREW TO MAKE REPAIRS, IT WAS NECESSARY TO MOVE STOCK. THIS WORK WAS DONE BY GOVERNMENT PRINTING OFFICE EMPLOYEES ON AN EMERGENCY OVERTIME BASIS AT A COST OF $739.52. IT IS THE RECOLLECTION OF THE GOVERNMENT PRINTING OFFICE EMPLOYEES CONCERNED IN THE INCIDENT THAT THESE SERVICES WERE FURNISHED AT THE REQUEST OF THE GENERAL SERVICES ADMINISTRATION.'

BY LETTER DATED APRIL 21, 1967, GSA ADVISED US THAT BECAUSE OF THE DANGER OF COLLAPSE OF THE ROOF UNDER THE HEAVY SNOW, REMOVAL OF SUCH SNOW WAS GIVEN HIGHEST PRIORITY FOR ASSIGNMENT OF LOCAL GSA EMPLOYEES, WHO WERE AUGMENTED BY PERSONNEL ON SPECIAL ASSIGNMENTS FROM ALL OVER THE WASHINGTON METROPOLITAN AREA. BECAUSE OF THIS, REMOVAL OF SNOW FROM THE ACCESS ROADS AND TRACK WAS DELAYED.

IT IS REPORTED THAT THE GPO WAS A TENANT IN THE BUILDING UNDER A SPACE ASSIGNMENT, GSA FORM 65, WHICH DESIGNATED THE AMOUNT OF SPACE SET ASIDE AND THE CHARGE FOR IT. THERE WAS NO SPECIAL AGREEMENT OR WRITTEN LEASE BETWEEN THE PARTIES. THE DEMURRAGE CHARGES WERE ASSESSED AND PAID IN ACCORDANCE WITH AN AVERAGE DEMURRAGE AGREEMENT BETWEEN THE GPO AND THE RAILROAD.

IT IS THE POSITION OF GSA CONCERNING THE DEMURRAGE CHARGES, THAT WHILE GSA WAS RESPONSIBLE FOR CLEANING THE TRACK AND MAKING IT AVAILABLE FOR PLACEMENT OF GPO CARS, THIS RESPONSIBILITY WAS NOT ABSOLUTE NOR WAS THERE ANY GUARANTEE THAT THE TRACK WOULD BE CLEAR AT ALL TIMES. THE DELAY IN THIS AREA WAS DUE TO THE EMERGENCY NEED FOR ALL AVAILABLE GSA EMPLOYEES TO REMOVE THE SNOW FROM, AND MAKING EMERGENCY REPAIRS TO THE ROOF. BECAUSE OF THIS, IT IS THE VIEW OF GSA THAT THERE WAS NOT SUCH UNREASONABLE FAILURE OF RESPONSIBILITY ON THE PART OF GSA AS TO REQUIRE REIMBURSEMENT TO GPO FOR DEMURRAGE PAID UNDER ITS VOLUNTARY AGREEMENT WITH THE RAILROAD IN ORDER TO OBTAIN THE ADVANTAGES OF THE AVERAGE AGREEMENT. FOR THE REASONS STATED BY GSA, AND SINCE THERE IS NO CONTRACTUAL LIABILITY FOR THE PAYMENT OF DEMURRAGE CHARGES BY GSA, WE CONCUR IN THE VIEW THAT THE CLAIM IN THE AMOUNT OF $540 FOR REIMBURSEMENT OF DEMURRAGE CHARGES SHOULD BE DISALLOWED. CF. 39 COMP. GEN. 650.

WITH REGARD TO THE CLAIM FOR LABOR COSTS IN THE AMOUNT OF $739.52 INCURRED IN MOVING WAREHOUSE STOCK, SUCH CLAIM SHOULD BE RESUBMITTED TO GSA, IT BEING STATED IN GSA'S LETTER OF APRIL 21 THAT:

"WITH RESPECT TO THE CLAIM FOR THE MOVING COST, THE GSA STORES DEPOT AT FRANCONIA IS A PUBLIC BUILDING, BEING A WAREHOUSE, AS THAT TERM IS DEFINED IN THE PUBLIC BUILDINGS ACT OF 1959, AS AMENDED (40 U.S.C. 601). THAT ACT DEFINES THE TERM "ALTER" TO INCLUDE REPAIRING, REMODELING, IMPROVING, EXTENDING, OR OTHER CHANGES IN A PUBLIC BUILDING. UNDER THE APPROPRIATION TO A,"REPAIR AND IMPROVEMENT OF PUBLIC BUILDINGS," THERE IS PROVISION "FOR EXPENSES, NOT OTHERWISE PROVIDED FOR, NECESSARY TO ALTER PUBLIC BUILDINGS * * * MAINTENANCE, PRESERVATION, * * *.' THEREFORE, THE NECESSARY REPAIRS TO THE ROOF TO PRESERVE ITS STRUCTURAL INTEGRITY AND THE EXPENSES INCIDENT THERETO, INCLUDING THE MOVING OF THE GPO PROPERTY, WAS THE RESPONSIBILITY OF GSA, AND SUCH COSTS SHOULD BE REIMBURSED TO GPO.'