B-165308, DEC. 20, 1968

B-165308, DEC. 20, 1968

TO FRANK AND ROSS:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 18, 1968, AND OCTOBER 24, 1968, CONCERNING THE CLAIMS ON BEHALF OF YOUR CLIENT, MR. ROBERT H. SLAVIN, AS A RESULT OF THE LEASE FOR THE ENGLEWOOD CLIFFS POST OFFICE. CLAIM WAS MADE BY THE LETTER OF SEPTEMBER 18, 1968, IN THE AMOUNT OF $250, REPRESENTING THE DEDUCTION FROM THE ANNUAL RENTAL BY THE POST OFFICE DEPARTMENT FOR INTERIOR PAINTING AND IN ADDITION A CLAIM WAS MADE FOR ANY UNSPECIFIED COSTS INCURRED IN THE RESTORATION OF THE LEASED PREMISES AS A RESULT OF DAMAGES CAUSED BY POSTAL EMPLOYEES.

ON FEBRUARY 9, 1961, A LEASE WAS EXECUTED BETWEEN THE POST OFFICE DEPARTMENT AND THE SLAVIN CONSTRUCTION COMPANY FOR THE USE OF CERTAIN PREMISES SITUATED IN ENGLEWOOD CLIFFS, NEW JERSEY, AS POSTAL FACILITIES FOR A PERIOD OF FIVE YEARS AT AN ANNUAL RENTAL OF $2,884. THE LEASE FURTHER PROVIDED FOR A FIVE-YEAR RENEWAL AT THE OPTION OF THE GOVERNMENT AT AN ANNUAL RENTAL OF $3,384. SUBSEQUENTLY, TITLE TO THE LEASED PROPERTY WAS TRANSFERRED TO R. AND G. SLAVIN.

THE SUM OF $250 FOR THE COST OF INTERIOR PAINTING IS CLAIMED TO HAVE BEEN IMPROPERLY DEDUCTED BY THE POST OFFICE FROM THE ANNUAL RENTAL. THAT AMOUNT WAS DEDUCTED BY THE POST OFFICE TO OFF SET A PAYMENT MADE TO AN INDEPENDENT CONTRACTOR FOR PAINTING AFTER R. AND G. SLAVIN REFUSED TO DO THE SAME AT THEIR EXPENSE. THE AUTHORITY FOR REQUIRING THE LESSOR TO PAINT THE INTERIOR AT HIS EXPENSE IS CONTAINED IN PARAGRAPH SEVEN OF THE LEASE WHICH PROVIDES: "THE LESSOR SHALL, UNLESS HEREIN SPECIFIED TO THE CONTRARY MAINTAIN THE DEMISED PREMISES, INCLUDING THE BUILDING AND ANY AND ALL EQUIPMENT, FIXTURES, AND APPURTENANCES, WHETHER SEVERABLE OR NON- SEVERABLE, FURNISHED BY THE LESSOR UNDER THIS LEASE IN GOOD REPAIR AND TENANTABLE CONDITION, EXCEPT IN CASE OF DAMAGE ARISING FROM THE ACT OR NEGLIGENCE OF THE GOVERNMENT'S AGENTS OR EMPLOYEES. FOR THE PURPOSE OF SO MAINTAINING SAID PREMISES AND PROPERTY, THE LESSOR MAY AT REASONABLE TIMES ENTER AND INSPECT THE SAME AND MAKE ANY NECESSARY REPAIRS THERETO.'

AS THIS OFFICE ADVISED MR. SLAVIN ON APRIL 3, 1968, THE MATTER OF HIS CLAIM HAD NOT BEEN SUBMITTED TO OR RULED ON BY OUR OFFICE. HOWEVER, RESPECTING SIMILAR LEASE PROVISIONS WE HAVE HELD THE LESSOR TO BE REQUIRED TO FURNISH THOSE NECESSARY REPAIRS NOT EXPRESSLY EXEMPTED AND THAT INTERIOR PAINTING WAS SUCH A REQUIRED REPAIR. 6 COMP. GEN. 215, 21 ID. 90. B-164883, NOVEMBER 6, 1968. WE FIND NO BASIS TO ALTER THAT CONCLUSION IN THIS INSTANCE AND THE CLAIM FOR $250 MUST BE DENIED A SHAVING BEEN PROPERLY DEDUCTED FOR INTERIOR PAINTING.

ADDITIONALLY, CLAIMS WERE MADE IN UNSPECIFIED AMOUNTS FOR DAMAGES DONE BY EMPLOYEES OF THE POST OFFICE. IN PARTICULAR, CLAIMS HAVE BEEN PREVIOUSLY PRESENTED TO THE POST OFFICE FOR DAMAGES CAUSED BY POSTAL EMPLOYEES TO THE CANOPY ON THE REAR OF THE LEASED PREMISES; TO THE COPPER LEADER LOCATED ON THE SOUTHWEST CORNER OF THE LEASED PREMISES; TO THE CORNER BRICK AT THE SAME LOCATION; TO THE SIDEWALK AND BLACKTOP BY A SNOW PLOW, AND TO THE FOUNDATION OF THE FLAG POLE AT THE LEASED PREMISES. THESE CLAIMS HAVE BEEN SPECIFICALLY REFUTED BY THE POST OFFICE IN THE LETTER OF OCTOBER 12, 1967, TO MR. SLAVIN AND INASMUCH AS THEIR VALIDITY IS AT BEST DOUBTFUL, THIS OFFICE AS THE ACCOUNTING OFFICER OF THE GOVERNMENT MUST REFUSE ANY PAYMENT UNDER THE DOCTRINE OF LONGWILL V UNITED STATES, 17 CT. CL. 228, AND CHARLES V UNITED STATES, 19 CT. CL. 316.