B-126797, FEB. 29, 1956

B-126797, FEB. 29, 1956

TO EXECUTRICES OF THE ESTATE OF H. A. PAGE, JR.:

FURTHER REFERENCE IS MADE TO A LETTER DATED DECEMBER 5, 1955, IN YOUR BEHALF FROM THE ABOVE ATTORNEYS RELATIVE TO YOUR CLAIMS OF $3,983 AND $1,000 ARISING OUT OF CONTRACT NO. W-148-QM-3199, DATED APRIL 11, 1938. POWER OF ATTORNEY ENCLOSED WITH LETTER OF FEBRUARY 15, 1956, IS HEREBY ACKNOWLEDGED.

UNDER THE CONTRACT H. A. PAGE, JR., D/B/A THE FORT BENNING RAILROAD, AGREED TO PERFORM, WITHOUT COST TO THE GOVERNMENT, CERTAIN RAILWAY SWITCHING SERVICES ON AND ABOUT THE DEPARTMENT OF THE ARMY MILITARY RESERVATION AT FORT BENNING, GEORGIA. THE GOVERNMENT AGREED TO MAKE AVAILABLE TO THE FORT BENNING RAILROAD FOR THE PERFORMANCE OF THESE SERVICES TWO STEAM LOCOMOTIVES AND SUCH OTHER STANDARD GAUGE ROLLING STOCK AND EQUIPMENT AS WAS DESIGNATED BY THE COMMANDING OFFICER OF FORT BENNING. THE RAILROAD WAS AUTHORIZED, TO THE EXTENT IT WAS LAWFUL AND SUBJECT TO CERTAIN CONDITIONS, TO CHARGE THE COMMON CARRIER RAILROADS AND OTHER PARTIES ENGAGING THE SERVICES SUCH RATES AS WERE APPROVED BY THE CONTRACTING OFFICER. THE CONTRACT WAS AMENDED AT VARIOUS TIMES TO EFFECT CERTAIN DESIRED CHANGES DURING THE MANY YEARS IT HAS BEEN IN EXISTENCE. IT APPEARS THAT DURING OCTOBER 1952 THE FORT BENNING RAILROAD REQUESTED PERMISSION TO PERFORM CERTAIN SWITCHING SERVICES FOR THE CONSOLIDATED GRAVEL COMPANY. THE SERVICES WERE AUTHORIZED BY THE GOVERNMENT ON A TEMPORARY BASIS ON JANUARY 2, 1953. BY LETTER DATED MAY 26, 1953, HOWEVER, THE GOVERNMENT AUTHORITIES ADVISED THE FORT BENNING RAILROAD THAT SINCE THE SWITCHING SERVICES FOR THE CONSOLIDATED GRAVEL COMPANY HAD ASSUMED THE ASPECTS OF PERMANENCY THE AUTHORITY GRANTED ON JANUARY 2, 1953, FOR SUCH SERVICES WAS BEING WITHDRAWN. THE RAILROAD WAS FURTHER ADVISED THAT SHOULD CONTINUED USE OF THE GOVERNMENT'S FACILITIES AND EQUIPMENT BE DESIRED FOR SUCH SERVICES, IT WOULD BE NECESSARY TO ENTER INTO A SUPPLEMENTAL AGREEMENT WITH THE GOVERNMENT THEREFOR. IT APPEARS, HOWEVER, THAT THE FORT BENNING RAILROAD CONTINUED TO PERFORM SWITCHING SERVICES FOR THE CONSOLIDATED GRAVEL COMPANY THROUGH OCTOBER 1953. SUBSEQUENTLY DEDUCTIONS WERE MADE BY THE GOVERNMENT FOR AMOUNTS OTHERWISE DUE THE RAILROAD IN THE AMOUNT OF $3,983. THIS AMOUNT WAS BASED ON A CHARGE OF $3.50 A CAR FOR SWITCHING A TOTAL OF 1,138 CARS DURING THE MONTHS OF JANUARY THROUGH OCTOBER 1953. YOU CLAIM A REFUND OF THE $3,983 SO DEDUCTED AND ALSO, PAYMENT OF $1,000 ALLEGEDLY OWED BY THE GOVERNMENT FOR THE REGULAR SERVICES RENDERED DURING JANUARY 1955 UNDER A SUPPLEMENTAL AGREEMENT DATED APRIL 22, 1947, TO THE CONTRACT.

THE REQUEST FOR REVIEW OF THE MATTER, AS SET FORTH IN THE ATTORNEYS' LETTER OF DECEMBER 5, 1955, AND BY REFERENCE TO LETTER DATED JUNE 29, 1954, APPEARS TO BE BASED PRIMARILY ON THE PREMISE THAT THE PERMISSION TO SWITCH THE GRAVEL CARS WAS ISSUED BY A DULY AUTHORIZED GOVERNMENT OFFICIAL AND, THEREFORE, THE GOVERNMENT WAS BOUND IN ACCORDANCE WITH THE EXPRESS CONDITIONS THEREOF.

THE LETTER DATED JANUARY 2, 1953, AUTHORIZING THE SWITCHING SERVICES TO THE CONSOLIDATED GRAVEL COMPANY AND THE LETTER DATED MAY 26, 1953, WITHDRAWING THE AUTHORITY FOR SUCH SERVICES CLEARLY REFLECT THAT NO CHARGES WERE INTENDED FOR THE ACCOUNT OF THE FORT BENNING RAILROAD AT THE TIME THE PERMISSION WAS GRANTED--- PERHAPS DUE TO THE BELIEF THAT SUCH SERVICES WERE OF A TEMPORARY NATURE. THEREFORE, INSTRUCTIONS ARE TODAY BEING ISSUED TO THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, FOR THE ALLOWANCE OF SUCH PART OF YOUR CLAIM FOR $3,983 AS IS REPRESENTED BY THE NUMBER OF CARS SWITCHED AT $3.50 A CAR FROM THE DATE OF AUTHORIZATION ON JANUARY 2, 1953, TO THE DATE OF NOTICE OF MAY 26, 1953, BY THE FORT BENNING RAILROAD THAT THE AUTHORITY WAS WITHDRAWN FOR ANY FURTHER SWITCHING SERVICES.

WITH RESPECT TO THE CHARGE FOR THE SWITCHING SERVICES AFTER RECEIPT OF THE WITHDRAWAL NOTICE THE FORT BENNING RAILROAD WAS EXPRESSLY NOTIFIED THAT THE PERMISSION PREVIOUSLY GRANTED WAS WITHDRAWN. THE RAILROAD WAS FURTHER ADVISED THAT IF IT DESIRED TO CONTINUE RENDERING SUCH SERVICES TO THE CONSOLIDATED GRAVEL COMPANY IT WOULD BE NECESSARY TO EXECUTE A SUPPLEMENTAL AGREEMENT SIMILAR TO THE AGREEMENT IT PREVIOUSLY HAD ENTERED INTO FOR FURNISHING LIKE SERVICES TO SUNSHINE BISCUITS, INCORPORATED, AND THAT A CHARGE AT THE RATE OF $3.50 A CAR WOULD BE CONSIDERED IN ANY NEGOTIATIONS FOR SUCH AN AGREEMENT. HENCE, NOTWITHSTANDING THAT THE FORT BENNING RAILROAD WAS FULLY APPRISED OF THE TERMINATION OF THE AUTHORITY AND OF THE CONDITIONS ATTENDING ANY RENEWAL THEREOF, IT NEVERTHELESS CONTINUED TO PERFORM THE SWITCHING SERVICES FOR THE CONSOLIDATED GRAVEL COMPANY USING THE GOVERNMENT FACILITIES AND EQUIPMENT THEREFOR. IN VIEW OF THIS, IT MUST BE CONCLUDED THAT THE FORT BENNING RAILROAD ASSUMED, OR IMPLIEDLY AGREED TO PAY FOR, ALL PROPER CHARGES FOR THE GRAVEL CARS SWITCHED BETWEEN THE DATE OF THE NOTICE OF WITHDRAWAL AND THE END OF OCTOBER 1953, BASED ON THE RATE OF $3.50 A CAR WHICH IS CONSIDERED TO REPRESENT A FAIR AND REASONABLE CHARGE AS INDICATED BY OTHER CIRCUMSTANCES IN THE RECORD.

ACCORDINGLY, THE SETTLEMENT OF THAT PART OF YOUR CLAIM FOR $3,983 COVERING THE PERIOD FROM MAY 26, 1953, THROUGH OCTOBER 1953, IS SUSTAINED.

UPON COMPLIANCE WITH THE INSTRUCTIONS SET FORTH IN OUR LETTER DATED DECEMBER 12, 1955, CONSIDERATION WILL BE GIVEN TO YOUR CLAIM FOR $1,000.