B-136510, JUL 24, 1958

B-136510, JUL 24, 1958

TO MR. R. J. WALTER, JR., AUTHORIZED CERTIFYING OFFICER, BUREAU OF RECLAMATION:

THERE HAS BEEN RECEIVED FROM THE DIVISION OF PROGRAM COORDINATION AND FINANCE (FILE 370) YOUR LETTER OF JUNE 4, 1958 (YOUR FILE 7-365), WITH ITS ENCLOSURES, TRANSMITTING BUREAU VOUCHER NO. M-8-3887 DATED FEBRUARY 18, 1958 IN THE AMOUNT OF $14,392.60, STATED IN FAVOR OF CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, 547 WEST JACKSON BOULEVARD, CHICAGO 6, ILLINOIS. THE VOUCHER COVERS WORK PERFORMED BY THE PAYEE UNDER CONTRACT NO. 14-06-700-925, DATED OCTOBER 1, 1955, IN CONNECTION WITH THE RELOCATION AND GRADE RAISES AT THE GLENDO RESERVOIR, GLENDO, WYOMING, MISSOURI RIVER BASIN PROJECT. YOU REQUEST A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CERTIFY THE VOUCHER FOR PAYMENT.

THE CONTRACT PROVIDES THAT CERTAIN PORTIONS OF THE MATERIALS AND WORK REQUIRED IN CONNECTION WITH THE RELOCATION AND GRADE RAISES COVERED BY THE CONTRACT SHOULD BE FURNISHED BY THE UNITED STATES AND THAT OTHER PORTIONS SHOULD BE FURNISHED BY THE CONTRACTOR RAILROAD. ARTICLE 11 OF THE CONTRACT PROVIDES IN PERTINENT PART:

"F. EXCEPT AS OTHERWISE PROVIDED BY ARTICLE 12, THE UNITED STATES AND ITS CONTRACTORS SHALL AFTER TRANSFER OF OPERATIONS TO THE RELOCATED AND RECONSTRUCTED LINE, BE RELIEVED OF ANY AND ALL LIABILITY FOR THE CONSTRUCTION, RECONSTRUCTION, REPAIR, OR MAINTENANCE OF THE RELOCATED AND RECONSTRUCTED LINE AND FROM ANY AND ALL CLAIMS FOR DAMAGES ARISING AS A RESULT OF THE CONSTRUCTION OR OPERATION OF THE RELOCATED AND RECONSTRUCTED LINE AND OTHER FACILITIES CONSTRUCTED PURSUANT TO THIS AGREEMENT.

"G. THE UNITED STATES, HOWEVER, AGREES TO PAY THE BURLINGTON AS PART OF THE TRACK LAYING COSTS FOR THE COST AND EXPENSE OF ALL WORK PERFORMED DURING THE FIRST 30 DAYS AFTER TRANSFER OF OPERATIONS TO THE RELOCATED AND RECONSTRUCTED LINES NECESSARY TO KEEP OR PLACE THE TRACK IN PROPER ALIGNMENT OR SURFACE OR OTHERWISE TO PLACE THE TRACK, ROADBED AND OTHER FACILITIES CONSTRUCTED HEREUNDER IN THE CONDITION CALLED FOR BY THE PLANS AND SPECIFICATIONS * * *.'

BRIEFLY, IT IS STATED IN YOUR LETTER AND IN A MEMORANDUM DATED MARCH 19, 1958, BY THE CONSTRUCTION ENGINEER THAT THE UNITED STATES WAS OBLIGATED UNDER ANOTHER CONSTRUCTION CONTRACT TO FURNISH THE SITE FOR CONSTRUCTION OF GLENDO RESERVOIR DIKE NO. 3 BY SEPTEMBER 1, 1956, AND THAT IN ORDER TO MEET THE OBLIGATION THE UNITED STATES REQUESTED THE RAILROAD TO REROUTE TRAFFIC AT THE EARLIEST POSSIBLE DATE. IN COMPLIANCE WITH THAT REQUEST, THE RAILROAD ROUTED TRAFFIC OVER THE RELOCATED AND RECONSTRUCTED LINES ON SEPTEMBER 7, 1956, ALTHOUGH CONSIDERABLE CONSTRUCTION WORK REMAINED TO BE COMPLETED BY THE RAILROAD. CONSEQUENTLY, THE REMAINING NECESSARY WORK COULD NOT BE COMPLETED WITHIN THE 30-DAY PERIOD REFERRED TO IN THE ABOVE- QUOTED EXCERPT FROM ARTICLE 11 OF THE CONTRACT.

IT IS STATED IN YOUR LETTER THAT THE TOTAL FOR ALL MATERIALS, LABOR AND EQUIPMENT RENTAL BILLED BY THE CONTRACTOR RAILROAD AFTER EXPIRATION OF THE 30-DAY PERIOD FOLLOWING THE TRANSFER OF OPERATIONS TO THE RELOCATED LINES IS $29,543.10 ($29,453.10) OF WHICH $15,060.50 HAS BEEN PAID TO THE CONTRACTOR, LEAVING AN UNPAID BALANCE OF $14,392.60 WHICH IS COVERED BY THE SUBJECT VOUCHER. YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT OF THE AMOUNT OF THE VOUCHER ARISES FROM THE FACT THAT IT COVERS EXPENSES INCURRED AFTER THE EXPIRATION OF THE REFERRED-TO 30 DAY PERIOD.

IT IS REPORTED FURTHER THAT THE ABOVE-MENTIONED RESCHEDULING OF THE CONTRACT WORK AT THE GOVERNMENT'S REQUEST RESULTED IN SAVINGS OF $38,000 TO THE GOVERNMENT (BY AVOIDING EXPENDITURES FOR TEMPORARY LOADING FACILITIES, FOR MAINTENANCE OF A TEMPORARY TRACK, FOR MOVING EQUIPMENT AND CREWS OUT IN SEPTEMBER AND BACK IN MAY, AND FOR ADDITIONAL COST OF OBTAINING BORROW MATERIAL FOR A HIGHWAY GRADE RAISE), IMPROVED THE OPERATION AND SAFETY OF THE RAILROAD, AND PERMITTED OTHER GOVERNMENT CONTRACTORS TO COMPLETE THEIR WORK ON SCHEDULE AND WITHOUT CLAIMS AGAINST THE UNITED STATES.

IN VIEW OF THE FOREGOING AND SINCE IT APPEARS THAT THE RESCHEDULING REQUESTED BY THE GOVERNMENT PREVENTED THE CONTRACTOR RAILROAD FROM COMPLETING THE NECESSARY WORK REFERRED TO IN ARTICLE 11G OF THE CONTRACT WITHIN THE 30-DAY PERIOD REFERRED TO THEREIN, IT IS CONCLUDED THAT THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

THE VOUCHER, THE CONTRACT SUMMARY AND THE COPY OF THE CONTRACT ARE RETURNED HEREWITH.