B-161590, JUN. 2, 1967

B-161590: Jun 2, 1967

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER OF MAY 19. TO ALLOW THE MODIFICATION OF WATER STORAGE FACILITIES WHICH HAVE BEEN BUILT TO CONTRACT SPECIFICATIONS. THE SUBJECT CONTRACT WAS ENTERED INTO WITH THE CITY ON JUNE 8. IT IS REPORTED THAT THE PROVISION IN THE CONTRACT FOR REPLACEMENT OF THE WATER SUPPLY AND DISTRIBUTION SYSTEM WAS IN ACCORDANCE WITH PLANS AND SPECIFICATIONS DEVELOPED BY THE GOVERNMENT PURSUANT TO CRITERIA PREPARED BY CONSULTING ENGINEERS EMPLOYED BY THE GOVERNMENT. THAT THE CITY ASSENTED TO THE DESIGN OF THE REPLACEMENT FACILITIES EXPRESSING RESERVATIONS OUTSIDE THE CONTRACT THAT THIS WAS BEING DONE WITH THE UNDERSTANDING THAT THE SUBSTITUTE WATER SUPPLY AND DISTRIBUTION SYSTEM WOULD BE COMPARABLE IN SERVICE AND UTILITY TO THE SYSTEM THEN IN EXISTENCE.

B-161590, JUN. 2, 1967

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF MAY 19, 1967, FROM THE SPECIAL ASSISTANT (CIVIL FUNCTIONS), REQUESTING AUTHORITY TO AMEND CONTRACT DA 45-164-CIVENG -64-285 WITH THE CITY OF BOARDMAN, OREGON, TO ALLOW THE MODIFICATION OF WATER STORAGE FACILITIES WHICH HAVE BEEN BUILT TO CONTRACT SPECIFICATIONS.

THE CORPS OF ENGINEERS HAS BEEN CONSTRUCTING THE JOHN DAY LOCK AND DAM PROJECT ON THE COLUMBIA RIVER. IN THE DEVELOPMENT OF THE PROJECT, IT HAS BEEN NECESSARY TO RELOCATE CERTAIN PUBLIC FACILITIES, INCLUDING A WATER SUPPLY AND DISTRIBUTION SYSTEM OWNED AND OPERATED BY THE CITY OF BOARDMAN, OREGON. TO ACCOMPLISH THAT END, THE SUBJECT CONTRACT WAS ENTERED INTO WITH THE CITY ON JUNE 8, 1964.

IT IS REPORTED THAT THE PROVISION IN THE CONTRACT FOR REPLACEMENT OF THE WATER SUPPLY AND DISTRIBUTION SYSTEM WAS IN ACCORDANCE WITH PLANS AND SPECIFICATIONS DEVELOPED BY THE GOVERNMENT PURSUANT TO CRITERIA PREPARED BY CONSULTING ENGINEERS EMPLOYED BY THE GOVERNMENT, AND THAT THE CITY ASSENTED TO THE DESIGN OF THE REPLACEMENT FACILITIES EXPRESSING RESERVATIONS OUTSIDE THE CONTRACT THAT THIS WAS BEING DONE WITH THE UNDERSTANDING THAT THE SUBSTITUTE WATER SUPPLY AND DISTRIBUTION SYSTEM WOULD BE COMPARABLE IN SERVICE AND UTILITY TO THE SYSTEM THEN IN EXISTENCE. IT IS REPORTED FURTHER:

"3. THE SYSTEM EXISTING AT THAT TIME CONSISTED OF A WELL AND AN APPROXIMATE 5,000 GALLON HYDROPNEUMATIC TANK WHICH HAD A CARRY-OVER TIME OF APPROXIMATELY THREE HOURS IF FOR ANY REASON THE SYSTEM FAILED. ADDITION, THERE WAS AN OPEN DITCH WHICH SUPPLIED WATER FOR IRRIGATION.

"4. IN RELOCATING THE WATER SYSTEM, IT WAS FOUND TO BE ECONOMICALLY JUSTIFIED TO COMBINE THE TWO SYSTEMS INTO ONE SYSTEM BEING SUPPLIED BY A DEEP WELL AND PUMP. THIS COMBINED SYSTEM WAS DESIGNED TO PRODUCE ABOUT 500 GALLONS PER MINUTE. THE COST WAS APPROXIMATELY $25,000 LESS THAN IF THE SYSTEM HAD BEEN REPRODUCED WITH A PIPE DOMESTIC SYSTEM AND AN OPEN DITCH IRRIGATION SYSTEM.

"5. SINCE THIS SYSTEM HAS BEEN IN USE, ONE MAJOR SHORTCOMING HAS DEVELOPED, AND THAT IS THE RELIABILITY OF THE SYSTEM. ALTHOUGH THIS NEW SYSTEM HAS A 6,600 GALLON HYDROPNEUMATIC TANK WITH A POSSIBLE HIGH DEMAND OF 400 GALLONS PER MINUTE, THE MAXIMUM STORAGE IS SLIGHTLY OVER FIVE MINUTES AND THE MINIMUM STORAGE ABOUT ONE-HALF MINUTE. ACCORDING TO THE MAYOR OF BOARDMAN, ANY HIGH DEMAND ON THE WATER SYSTEM COULD MAKE THE CITY UNLIVABLE. SUCH A SHORT PERIOD OF STORAGE RESULTS IN GREAT DETRIMENT, AS LOSS OF WATER IN THE SYSTEM HAS CAUSED DAMAGE TO ELECTRIC HOT WATER HEATERS, STOPPAGE OF FREEZING EQUIPMENT IN RESTAURANTS WITH LOSS OF PRODUCTION, AND INTERRUPTION OF AIR CONDITIONING SYSTEMS.

"6. THE ONLY ITEM IN QUESTION OF THE NEW WATER SYSTEM IS THE RELIABILITY OF THE STORAGE ITEM. ONE SOLUTION PROPOSED IS A 35,000 GALLON ABOVE- GROUND STORAGE TANK. SINCE STORAGE IS THE MAJOR ITEM, THE DIVISION ENGINEER INVESTIGATED USING THE GROUND WATER AS STORAGE AND INSTALLATION OF A SECOND WELL AND PUMP. THE SECOND WELL INVESTIGATED WAS FOR A DOMESTIC DEMAND ONLY. IN CASE OF A PUMP FAILURE ON THE LARGE PUMP, THE DOMESTIC DEMAND PUMP ONLY WOULD NOT CARRY THE SYSTEM. IN CASE OF AN ELECTRIC FAILURE, AN ENGINE CONNECTED TO THE PUMP WOULD, OF COURSE, CONTINUE TO PRODUCE AN ADEQUATE SUPPLY OF WATER. FOR COMPLETE RELIABILITY USING THE GROUND WATER AS STORAGE, IT WOULD BE NECESSARY TO HAVE TWO 500 GALLON PER MINUTE PUMPS, ONE CONNECTED TO THE ELECTRIC SUPPLY AND ONE CONNECTED TO AN ENGINE WHICH WOULD ALLOW ONE PUMP TO BE ALWAYS AVAILABLE WHETHER ELECTRICAL ENERGY HAD BEEN INTERRUPTED OR APUMP BREAKDOWN HAD OCCURRED. WHILE NO COSTS ARE AVAILABLE FOR A SECOND 12-INCH WELL, 500- GALLON CAPACITY PUMP AND A STANDBY ENGINE, IT IS BELIEVED THE COST WOULD APPROXIMATE OR EXCEED THE COST OF THE 35,000-GALLON OVERHEAD TANK.

"7. SINCE IN RELOCATING THE DOMESTIC WATER SYSTEM BOTH THE ARCHITECT ENGINEER AND THE CORPS OF ENGINEERS OVERLOOKED THE RELIABILITY OF THE SYSTEM, IT IS ALMOST MANDATORY FOR THE CORPS TO PROVIDE A SYSTEM RELIABILITY. THIS LACK OF RELIABILITY OF THE SUBSTITUTE FACILITIES WAS NOT CONTEMPLATED BY EITHER PARTY TO THE CONTRACT AT THE TIME IT WAS EXECUTED. ACCORDINGLY, IT IS NECESSARY THAT THE CONTRACT BE REFORMED BY MAKING PROVISION FOR INSTALLATION OF A WATER STORAGE TANK AT AN ESTIMATED COST OF $50,000 IN ORDER THAT THE RELIABILITY OF THE SYSTEM MAY BE ASSURED.'

IT APPEARS FROM THE FOREGOING THAT IT WAS THE INTENTION OF THE CONTRACTING PARTIES THAT THE NEW WATER AND DISTRIBUTION SYSTEM WOULD BE OF EQUAL SERVICE AND UTILITY TO THE OLD SYSTEM. HOWEVER, THE NEW SYSTEM, WHICH HAS BEEN BUILT TO CONTRACT SPECIFICATIONS AND WHICH THE CITY HAS BEEN REIMBURSED FOR, APPARENTLY DOES NOT MEET THE STANDARD ACTUALLY INTENDED BY THE PARTIES. THE INCLUSION OF THE PLANS AND SPECIFICATIONS IN THE CONTRACT APPEARS TO HAVE BEEN UNDER THE MUTUAL ERRONEOUS BELIEF THAT THEY WOULD PROVIDE A SYSTEM TO MEET THE INTENTION OF THE PARTIES. IN THE CIRCUMSTANCES, REFORMATION OF THE CONTRACT TO INCLUDE SPECIFICATIONS WHICH WOULD ACTUALLY MEET THE INTENTION OF THE PARTIES WOULD APPEAR TO BE APPROPRIATE. SEE B-159372, JUNE 28, 1966.

ARTICLE 9 OF THE CONTRACT PROVIDES:

"RELEASE. THE CITY AGREES, ON COMPLETION OF THE RELOCATION WORK PROVIDED HEREIN, TO ACCEPT THE PAYMENTS PROVIDED FOR IN ARTICLE 3 ABOVE AS FULL AND JUST COMPENSATION FOR ANY AND ALL DAMAGES AND INJURY THAT HAVE BEEN CAUSED OR THAT MAY BE CAUSED TO THE FACILITIES RELOCATED HEREUNDER BY REASON OF THE CONSTRUCTION AND MAINTENANCE OF THE PROJECT BY THE GOVERNMENT; AND UPON FINAL PAYMENT AS HEREIN PROVIDED, THE CITY AGREES TO AND DOES HEREBY RELEASE AND AGREE TO SAVE AND HOLD THE GOVERNMENT HARMLESS FROM ANY AND ALL CAUSES OF ACTION, SUITS AT LAW OR EQUITY, OR CLAIMS OR DEMANDS, OR FROM ANY LIABILITY OF ANY NATURE WHATSOEVER FOR AND ON ACCOUNT OF ANY DAMAGES TO THE LANDS CONVEYED AND THE FACILITIES RELOCATED HEREUNDER, OR IN ANY WAY GROWING OUT OF THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE PROJECT.'

HOWEVER, AS THE CITY IS REPORTED TO HAVE CONDITIONED ITS ACCEPTANCE OF THE CONTRACT UPON A DEMONSTRATION THAT THE SYSTEM WOULD SATISFACTORILY PERFORM IN THE MANNER INDICATED ABOVE AND AS THE GOVERNMENT IS REPORTED TO HAVE ASSURED THE CITY AT THE TIME THAT SUCH WAS THE INTENTION OF THE GOVERNMENT AS WELL, THE RELEASE ARTICLE APPARENTLY WAS NOT INTENDED TO DISCHARGE THE GOVERNMENT IN THE EVENT THE SYSTEM DID NOT OPERATE AS INTENDED. SEE B-159372, SUPRA.

ACCORDINGLY, IN THE CIRCUMSTANCES, THE CONTRACT MAY BE MODIFIED AS RECOMMENDED.