B-128356, JUL. 6, 1956

B-128356, JUL. 6, 1956

TO MR. ALVON S. JONES, AUTHORIZED CERTIFYING OFFICER, SOIL CONSERVATION SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1956, REQUESTING A DECISION AS TO WHETHER PAYMENT SHOULD BE AUTHORIZED ON AN INVOICE TRANSMITTED THEREWITH IN FAVOR OF JOHN WILLIAM HALL IN THE AMOUNT OF $1,395, FOR SERVICES RENDERED PURSUANT TO AN UNNUMBERED CONTRACT ENTERED INTO WITH THE CLAIMANT.

THE RECORD SHOWS THAT UNDER DATE OF OCTOBER 28, 1955, THE SOIL CONSERVATION SERVICE ISSUED INVITATION FOR BIDS NO. SCS-20-KY-56, FOR FURNISHING ALL LABOR, TOOLS, SEED, FERTILIZER, EQUIPMENT, AND TRANSPORTATION, AND PERFORMING ALL WORK NECESSARY FOR LAND PREPARATION, MULCHING AND SEEDING AS CALLED FOR BY THE SPECIFICATIONS ATTACHED THERETO. IN RESPONSE TO THE INVITATION, MR. HALL SUBMITTED BIDS ON THE ITEMS INVOLVED AND THE SAME WAS ACCEPTED AS TO ITEM 3, PROVIDING FOR SEED BEDPREPARATION, SEEDING AND MULCHING APPROXIMATELY 7 ACRES ON AND ADJACENT TO STRUCTURE NO. 5, GREEN RIVER WATERSHED, NEAR HIGHLAND, LINCOLN COUNTY, KENTUCKY, THE WORK TO BE COMPLETED NOT LATER THAN DECEMBER 15, 1955.

WITH RESPECT TO THE SEED REQUIREMENTS AS TO STRUCTURE NO. 5, THE SPECIFICATIONS CONTAIN THE FOLLOWING PARAGRAPH:

"5. SEED REQUIREMENTS: FESCUE SEED CERTIFIED BY THE KY. SEED IMPROVEMENT ASSOCIATION WILL BE USED. REED CANARY GRASS, CERTIFIED OR EQUIVALENT, BASED ON THE SEED IMPROVEMENT ASSOCIATION REQUIREMENTS FOR CERTIFICATION IN THE STATE WHERE GROWN SHOULD BE USED. IF SEED IS NOT CERTIFIED IN THE STATE WHERE GROWN, A PURITY OF 90 PERCENT AND A GERMINATION OF 60 PERCENT WILL APPLY AS MINIMUM REQUIREMENTS. NO SEED SHALL BE PLANTED THAT HAS A TEST DATE OF MORE THAN 120 DAYS PRIOR TO THE DATE OF SEEDING. CERTIFICATION TAGS OR OTHER WRITTEN EVIDENCE OF CERTIFICATION SHALL BE FURNISHED THE GOVERNMENT REPRESENTATIVE AND FORWARDED TO THE CONTRACTING OFFICER AT THE TIME OF SEEDING.'

YOU REPORT THAT DUE TO CONSTRUCTION WORK IN COMPLETING THE DAM AND THE STREAM CHANNEL BELOW THE DAM AND ON ACCOUNT OF WEATHER AND OTHER CONDITIONS, THE SEEDING AND MULCHING COVERED BY THE CONTRACT WAS NOT ACCOMPLISHED PRIOR TO DECEMBER 15, 1955, BUT, WITH THE KNOWLEDGE AND AGREEMENT OF THE GOVERNMENT REPRESENTATIVE AT THE WORK LOCATION, WAS POSTPONED UNTIL THE SPRING OF 1956; THAT THE CONTRACT WORK WAS COMPLETED ON MAY 4, 1956, AND WAS PROPERLY INSPECTED AND ACCEPTED BY THE GOVERNMENT REPRESENTATIVE ON THAT DATE. YOU REPORT FURTHER THAN AN INSPECTION OF THE SITE OF THE WORK ON MAY 23, 1956, BY R. S. REYNOLDS, STATE SOIL CONSERVATIONIST, INDICATES THAT A SATISFACTORY STAND OF GRASS WAS GROWING AT THAT TIME.

YOU STATE THAT YOUR DOUBT AS TO WHETHER PAYMENT IS PROPER ARISES FROM THE FACT THAT AFTER THE SEEDING HAD BEEN ACCOMPLISHED IT WAS FOUND THAT THE CONTRACTOR HAD PLANTED THE SEED PURCHASED FOR USE DURING THE FALL OF 1955, AND THAT THE SAME HAD NOT BEEN TESTED WITHIN 120 DAYS OF THE ACTUAL SEEDING DATE, AS PROVIDED BY THE CONTRACT. THE FILE FURNISHED, HOWEVER, DOES CONTAIN SEED LABORATORY TEST REPORTS ON THE KENTUCKY FESCUE DATED IN MAY 1956, WHICH MUST HAVE BEEN WITHIN 120 DAYS OF SEEDING; THE ONLY TEST REPORT ON THE REED CANARY GRASS SEED WAS DATED IN NOVEMBER 1955, AT WHICH TIME IT MET THE REQUIREMENTS OF THE SPECIFICATIONS AS TO PURITY AND GERMINATION.

IT APPEARS THAT NOTWITHSTANDING THERE WAS FAILURE ON THE PART OF THE CONTRACTOR TO USE REED CANARY GRASS SEED THAT HAD BEEN TESTED WITHIN 120 DAYS OF THE ACTUAL SEEDING DATE, HE DID USE SEED THAT HAD BEEN TESTED WITHIN 120 DAYS OF THE COMPLETION DATE FIXED BY THE CONTRACT, BUT WHICH HE COULD NOT PLANT BECAUSE OF THE GOVERNMENT'S DELAY. SINCE IT MAY BE PRESUMED THAT NO FRESHER SEED COULD BE OBTAINED IN THE SPRING OF THE YEAR, THAN IN THE PRECEDING FALL, AND SINCE THE WORK WAS ACCEPTED, AND A SATISFACTORY STAND OF GRASS HAS BEEN OBTAINED, IT DOES NOT APPEAR THAT THE GOVERNMENT HAS SUFFERED ANY LOSS UNDER THE FACTS REPORTED. ACCORDINGLY, PAYMENT IN THIS CASE IS AUTHORIZED, IF OTHERWISE CORRECT. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER IN MAKING PAYMENT.

IN ACCORDANCE WITH YOUR REQUEST, THE ENCLOSURES TO YOUR LETTER ARE RETURNED HEREWITH.