B-127108, MAR. 19, 1956

B-127108, MAR. 19, 1956

TO GARDNER AND COMPANY:

REFERENCE IS MADE TO LETTERS DATED FEBRUARY 6 AND 10, 1956, FROM ARVEY, HODES AND MANTYNBAND, REQUESTING, IN YOUR BEHALF, REVIEW OF THAT PART OF OUR SETTLEMENT DATED JANUARY 26, 1956, WHICH DISALLOWED YOUR CLAIM FOR $744.50, REPRESENTING AN AMOUNT ALLEGED TO HAVE BEEN INCURRED BY YOU IN THE RESTORATION OF THE PREMISES LEASED BY YOU TO THE UNITED STATES UNDER LEASE NO. GS-05B-2494, DATED AUGUST 20, 1952.

YOUR CLAIM CONSISTS OF VARIOUS ITEMS AS THE COST OF REPAIRING CHANGES WHICH YOU CONTEND RESULTED FROM THE USE AND OCCUPANCY OF THE PROPERTY BY THE GOVERNMENT. YOU APPEAR TO BASE YOUR CLAIM ON THE PROVISIONS OF PARAGRAPH 8 OF THE LEASE WHICH PROVIDES THAT THE GOVERNMENT SHALL HAVE THE RIGHT DURING THE LEASE TO MAKE ALTERATIONS, ATTACH FIXTURES, AND ERECT ADDITIONS, STRUCTURES OR SIGNS IN OR UPON THE PREMISES, WHICH FIXTURES, ETC., WERE TO REMAIN THE PROPERTY OF THE GOVERNMENT WITH THE RIGHT OF REMOVAL. IT ALSO PROVIDES THAT THE GOVERNMENT SHALL SURRENDER POSSESSION OF THE PREMISES UPON THE TERMINATION OF THE LEASE AND IT SHALL RETURN THE PREMISES IN AS GOOD CONDITION AS THAT EXISTING AT THE BEGINNING OF THE LEASE, REASONABLE AND ORDINARY WEAR AND TEAR AND DAMAGE BY THE ELEMENTS OR BY CIRCUMSTANCES OVER WHICH THE GOVERNMENT HAD NO CONTROL, EXCEPTED.

UNDER THAT PROVISION THE UNITED STATES WAS NOT LIABLE TO YOU FOR REPAIRS OF DAMAGE WHICH WAS NOT IN EXCESS OF REASONABLE AND ORDINARY WEAR AND TEAR. YOU CONTEND THAT THE GOVERNMENT FAILED TO RESTORE THE PREMISES TO THE SAME CONDITION AS THAT EXISTING AT THE TIME OF THE LEASE, REASONABLE AND ORDINARY WEAR AND TEAR EXCEPTED.

THE REPORT FROM THE GENERAL SERVICES ADMINISTRATION, HOWEVER, DOES NOT SUPPORT YOUR CONTENTIONS. THAT REPORT INDICATES THAT EVERY EFFORT WAS MADE TO PERFORM THE REPAIRS FIRST REQUESTED BY YOU IN YOUR LETTER OF MARCH 1, 1954. HOWEVER, IN SPITE OF THESE EXTENSIVE REPAIRS YOU HAVE EVIDENCED YOUR DISSATISFACTION. IT APPEARS THAT THE ADMINISTRATIVE OFFICE HAS REPLACED APPROXIMATELY 250 SQUARE FEET OF TILE AT VARIOUS LOCATIONS OF THE LEASED PREMISES. IT IS REPORTED THAT "SHORT OF RESTORING THE PREMISES "LIKE NEW" THE GENERAL SERVICES ADMINISTRATION HAS DONE ALL THAT IS REQUIRED UNDER THE TERMS OF THE LEASE TO RESTORE THE PROPERTY TO A STATE COMPARABLE WITH THAT EXISTING PRIOR TO THE GOVERNMENT'S OCCUPANCY, ORDINARY WEAR AND TEAR EXCEPTED.'

WHILE IT IS STATED IN THE LETTER OF FEBRUARY 6, 1956, THAT SUFFICIENT EVIDENCE HAS BEEN SUBMITTED TO ESTABLISH THAT YOU HAVE EXPENDED $744.50 IN THE RESTORATION OF THE PREMISES, HOWEVER, NO EVIDENCE HAS BEEN FURNISHED TO REFUTE THE GENERAL SERVICES ADMINISTRATION REPORT THAT IT HAD DONE ALL THAT WAS REQUIRED UNDER THE TERMS OF THE LEASE TO RESTORE THE PROPERTY TO A STATE COMPARABLE WITH THAT EXISTING PRIOR TO THE GOVERNMENT'S OCCUPANCY, ORDINARY WEAR AND TEAR EXCEPTED. IT IS NOT DENIED THAT YOU EXPENDED THE AMOUNT ALLEGED, BUT IT IS CONTENDED THAT SUCH EXPENDITURES WERE NOT REQUIRED TO RESTORE THE PROPERTY TO A STATE COMPARABLE WITH THAT EXISTING PRIOR TO THE GOVERNMENT'S OCCUPANCY.

IT IS AN ESTABLISHED RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT, IN CASES OF DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. THIS CASE, THE EVIDENCE IS NOT CONSIDERED SUFFICIENT TO REFUTE THE ADMINISTRATIVE REPORT.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

WITH RESPECT TO THE CHECK IN THE AMOUNT OF $484.75 ISSUED IN PAYMENT OF THE AMOUNT ALLOWED BY SETTLEMENT OF JANUARY 26, 1956, YOU ARE ADVISED THAT INSOFAR AS OUR OFFICE IS CONCERNED, THE CHECK MAY BE NEGOTIATED WITHOUT PREJUDICE TO ANY RIGHTS THE PAYEE MIGHT HAVE TO THE BALANCE CLAIMED.