B-128045, JUL. 11, 1956

B-128045, JUL. 11, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO FOURTH INDORSEMENT DATED MARCH 12, 1956, FILE ENGAC- 82, WITH WHICH THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, FORWARDED TO OUR OFFICE FOR DIRECT SETTLEMENT THE CLAIM OF THE RESERVATION MUTUAL AID TELEPHONE CORPORATION IN THE AMOUNT OF $1,398.90, REPRESENTING AN INCREASE IN THE CONTRACT PRICE FOR THE RELOCATION OF TELEPHONE POLES WHICH WORK WAS INADVERTENTLY OMITTED FROM CONTRACT NO. DA-32-015-ENG-3115, DATED DECEMBER 23, 1953. SINCE THE CONTRACT HAS NOT BEEN COMPLETED PAYMENT OF THE CLAIM WILL NOT BE MADE BY OUR OFFICE.

THE RECORD SHOWS THAT IN ORDER TO DEVELOP AND COMPLETE A MULTI PURPOSE PROJECT KNOWN AS THE GARRISON RESERVOIR PROJECT BY THE CORPS OF ENGINEERS, IT WAS NECESSARY TO ACQUIRE TITLE OR EASEMENT RIGHTS TO CERTAIN LAND OWNED BY THE CONTRACTOR ON WHICH WERE TELEPHONE POLE LINES THAT INTERFERED WITH THE DEVELOPMENT AND USE OF THE PROJECT. UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR AGREED TO TRANSFER ALL RIGHTS, TITLES AND INTERESTS IN THE PROPERTY IN ORDER TO ELIMINATE INTERFERENCE WITH THE PROJECT AND TO RELOCATE THE TELEPHONE POLE LINES FOR WHICH IT WAS TO RECEIVE $15,142.50.

IT IS REPORTED THAT DUE TO A MUTUAL MISTAKE THE LINES OF TWO TELEPHONE SUBSCRIBERS WERE OVERLOOKED DURING THE NEGOTIATIONS TO THE CONTRACT FOR THE RELOCATION OF THE TELEPHONE POLE LINES IN THIS AREA. THIS OVERSIGHT OCCURRED BECAUSE ONE OF THE SUBSCRIBERS WAS SERVED DIRECTLY FROM THE TELEPHONE EXCHANGE LOCATED IN A VILLAGE ACQUIRED BY THE GOVERNMENT ALTHOUGH HIS FARM BUILDINGS WERE LOCATED OUTSIDE THE VILLAGE AND WERE NOT OBTAINED BY THE GOVERNMENT. IN THE CASE OF THE OTHER SUBSCRIBER A PORTION OF THE ACREAGE WAS ACQUIRED BY THE GOVERNMENT, BUT LATER IT WAS FOUND TO BE ABOVE THE MAXIMUM NORMAL OPERATING LEVEL OF THE GARRISON RESERVOIR AND A FIVE-ACRE TRACT ON WHICH THE BUILDINGS WERE LOCATED WAS EXCLUDED FROM THE TAKING-LINE AT A SUBSTANTIAL SAVING TO THE GOVERNMENT. IT IS FURTHER REPORTED THAT IN ORDER TO CONTINUE THE TELEPHONE SERVICE FOR THE TWO SUBSCRIBERS IT IS NECESSARY TO CONSTRUCT 3.0 MILES OF POLES AND A TWO-WIRE LINE IN ONE AREA AND 1.2 MILES OF POLES AND A TWO-WIRE LINE IN ANOTHER AREA. IT IS STATED THAT THE AMOUNT CLAIMED FOR THE PROPOSED WORK IS FAIR AND REASONABLE. THE WORK UNDER THE CONTRACT WAS SCHEDULED TO BE COMPLETED NOT LATER THAN JULY 1, 1954. HOWEVER, THE COMPLETION DATE HAS BEEN EXTENDED TO DECEMBER 31, 1956.

IT IS APPARENT THAT BOTH THE GOVERNMENT AND THE CONTRACTOR ENTERED INTO THE CONTRACT UPON THE BASIS OF A MUTUAL MISTAKE AS TO THE AMOUNT OF WORK INVOLVED AND THAT THE CONTRACTOR IS EQUITABLY ENTITLED TO ADDITIONAL COMPENSATION TO THE EXTENT INDICATED IN THE CONTRACTING OFFICER'S REPORT OF JANUARY 17, 1956, BY REASON OF THIS EXTRA WORK INVOLVED.

ACCORDINGLY, OUR OFFICE WILL NOT OBJECT TO THE AMENDMENT OF THE CONTRACT AS PROPOSED IN THE FINDINGS OF FACT OF THE CONTRACTING OFFICER TRANSMITTED WITH THE INDORSEMENT OF MARCH 12, 1956, AND PAYMENT TO THE CONTRACTOR ACCORDINGLY.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE AMENDMENT AND THE VOUCHER ON WHICH PAYMENT WILL BE MADE.