B-146565, AUG. 18, 1961

B-146565, AUG. 18, 1961

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF JULY 29, 1961, FROM THE ASSISTANT SECRETARY OF THE ARMY (FINANCIAL MANAGEMENT) REQUESTING A DECISION AS TO A PROPOSED MODIFICATION OF CONTRACT NO. DA-01-076-CIVENG-60-276, ENTERED INTO ON DECEMBER 7, 1959, WITH STEWART COUNTY, GEORGIA, TO INCREASE THE CONTRACT PRICE FROM $386,319 TO $406,544.

UNDER THE CONTRACT THE COUNTY, REFERRED TO THEREIN AS THE OWNER, IS REQUIRED, IN CONSIDERATION OF PAYMENT OF $386,319, TO FURNISH CERTAIN RIGHTS-OF-WAY AND EASEMENTS, AND TO PERFORM NECESSARY RELOCATION, REARRANGEMENT, OR ALTERATION OF THE PUBLIC ROAD SYSTEM OF STEWART COUNTY LYING WITHIN THE WALTER F. GEORGE PROJECT, MORE PARTICULARLY SPECIFIED AS RELOCATION NO. 2-ROOD CREEK, NO. 3-LOWER GRASS CREEK, NO. 4-UPPER GRASS CREEK. ARTICLE 1 OF THE CONTRACT PROVIDES FOR THE RELOCATION AND ALTERATIONS OF THE FACILITIES IN ACCORDANCE WITH THE DRAWINGS, SCHEDULES, OR SPECIFICATIONS IN EXHIBITS "A" AND "B" ATTACHED TO AND MADE APART OF THE CONTRACT. SUBPARAGRAPH C OF ARTICLE 1 PROVIDES THAT ANY DRAWINGS, MAPS OR SPECIFICATIONS WHICH MAY BE FURNISHED BY THE GOVERNMENT SHALL, IF REQUIRED BY THE OWNER, BE SUBJECT TO ITS APPROVAL BEFORE ANY WORK TO WHICH THEY RELATE IS PERFORMED.

IN THE FINDINGS OF FACT IN SUPPORT OF SUPPLEMENTAL AGREEMENT NO. 1 DATED OCTOBER 6, 1960, MADE BY THE DISTRICT ENGINEER AS CONTRACTING OFFICER, IT IS STATED THAT ON OR ABOUT SEPTEMBER 9, 1960, THE ATTORNEY FOR THE COUNTY CALLED TO PROTEST THE WIDTH OF FILL APPROACHES BEING CONSTRUCTED TO THE LOWER GRASS CREEK CROSSING, KNOWN AS LOCATION NO. 3; THAT THE ATTORNEY CONTENDED THAT THE APPROACHES TO THE PRESENT 24-FOOT WIDE BRIDGE WERE 32 FEET OR MORE IN WIDTH AN THAT THE GOVERNMENT SHOULD MAKE THE APPROACHES TO THE NEW BRIDGE OF EQUAL OR GREATER WIDTH. IT IS STATED FURTHER THAT ARRANGEMENTS WERE MADE TO INSPECT THE WORK THEN IN PROGRESS; THAT THE APPROACHES TO THE PRESENT BRIDGE WERE MEASURED AND FOUND TO AVERAGE APPROXIMATELY 32 FEET ON THE NORTH AND 25 FEET ON THE SOUTH; THAT ON THE SOUTH END OF THE BRIDGE THERE IS PRACTICALLY NO FILL APPROACH AS THE CUT COMES DOWN TO THE END OF THE BRIDGE; THAT ON THE NORTH THE FILL IS LOW BUT EXTENDS SOME LITTLE DISTANCE NORTH OF THE END OF THE BRIDGE; THAT THE GENERAL WIDTH OF THE RIVER ROAD FROMQUITMAN COUNTY LINE TO THE PAVEMENT AT FLORENCE IN STEWART COUNTY IS 21 FEET FROM SHOULDER TO SHOULDER; THAT ON THE NEW APPROACHES THE CONSTRUCTION PLANS CALLED FOR A SHOULDER-TO- SHOULDER WIDTH OF 26 FEET OVER THE RESERVOIR AND 22 FEET OUTSIDE THE RESERVOIR; AND THAT THE FILLS OF THE NEW APPROACHES ARE QUITE HIGH, BEING 35 FEET FROM THE GROUND AND 20 FEET ABOVE THE 190 POOL LEVEL. THE DISTRICT ENGINEER EXPRESSED THE VIEW THAT SINCE THE PRESENT ROAD MEASURES MORE THAN 26 FEET ON THE NORTH APPROACH WHERE THERE IS A LOW FILL WIDTH OF THE NEW ROAD WILL CONSTITUTE A TRAFFIC HAZARD DUE TO THE HEIGHT OF THE FILL. THEREFORE, HE RECOMMENDED THAT THE FILL BE INCREASED TO A WIDTH OF 32 FEET FROM SHOULDER TO SHOULDER OVER THE PORTION OF THE ROAD TO BE RIPRAPPED. HE STATED THAT SINCE THE COUNTY AUTHORITIES ARE NOT FAMILIAR WITH ROAD CONSTRUCTION THEY COULD NOT TELL FROM THE PLANS JUST HOW NARROW THE ROADWAY WOULD BE; THAT NOW THAT THE FILLS HAVE BEEN MADE THEY CAN SEE ON THE GROUND THE HAZARD WHICH THE NARROW ROAD WILL PRESENT; AND THAT IT IS UNFORTUNATE THAT THE WIDTH WAS NOT CALLED TO THE ATTENTION OF THE MOBILE DISTRICT WHERE THE DRAWINGS, ESTIMATES AND CONTRACT WERE MADE, PRIOR TO CONSTRUCTION.

THE DISTRICT ENGINEER CONCLUDED THAT TO WIDEN THE FILLS ON EACH SIDE WILL COST CONSIDERABLY MORE PER CUBIC YARD DUE TO THE NECESSITY OF COMPACTING AND WORKING IN A RESTRICTED AREA AND THEREFORE HE RECOMMENDED THAT THE UNIT PRICE FOR THE ADDITIONAL EARTH REQUIRED BE SET AT 60 CENTS PER CUBIC YARD INSTEAD OF 40 CENTS PER CUBIC YARD ALLOWED IN THE ESTIMATES AS SHOWN IN THE DESIGN MEMORANDUM, UPON WHICH THE LUMP SUM WAS BASED. HE ESTIMATED THAT AN ADDITIONAL AMOUNT OF 5900 CUBIC YARDS AT 60 CENTS PER CUBIC YARD WILL BE REQUIRED TO WIDEN THE FILLS.

THE DISTRICT ENGINEER FURTHER STATED THAT DURING THE INSPECTION IT WAS NOTED THAT THE CONSTRUCTION PLANS DID NOT FOLLOW THE REQUIREMENTS OF THE CONTRACT AS SET OUT IN THE GENERAL SPECIFICATIONS ATTACHED AS EXHIBIT "B" . HE POINTED OUT THAT THE GENERAL SPECIFICATIONS ATTACHED TO AND FORMING A PART OF THE CONTRACT REQUIRED THAT THE RIPRAP BE CARRIED AT SHOULDER HEIGHT AROUND THE TERMINAL CONES AND 25 FEET BACK FROM THE ABUTMENTS ON THE FILLS; THAT THE CONSTRUCTION PLANS AT LOCATION NO. 2, ROOD CREEK, LOCATION NO. 3, LOWER GRASS CREEK, AND LOCATION NO. 4, UPPER GRASS CREEK, REQUIRED THE RIPRAP TO BE CARRIED TO ESTABLISHED ELEVATIONS AROUND THE TERMINAL CONES AND BACK ALONG THE FILLS TO WHERE THE TOP OF THE RIPRAP JOINS THE ORIGINAL GROUND AT THOSE ELEVATIONS; AND THAT AT UPPER GRASS CREEK THE CONTRACT CALLED FOR RIPRAP TO BE CARRIED TO ELEVATION 201 MSL, EXCEPT AT THE TERMINAL CONES AND 25 FEET BACK FROM THE ABUTMENTS, WHEREAS THE PLANS SHOWED THE TOP OF THE RIPRAP TO BE 196.0 MSL. HE STATED THAT THROUGH ERROR THE PLANS WERE INCORRECTLY DRAFTED; THAT THEY MUST BE CORRECTED; AND THAT THE ESTIMATES WHICH FORMED THE BASIS OF THE LUMP-SUM CONTRACT FOLLOWED THE PLANS RATHER THAN THE REQUIREMENTS OF THE CONTRACT.

IN CONCLUSION THE DISTRICT ENGINEER STATED THAT IT WAS NOTED DURING THE INSPECTION THAT THE PLANS CALLED FOR GUARD POSTS EXTENDING BEYOND THE GUARDRAIL AT LOCATIONS NOS. 2, 3 AND 4 WHEREAS THERE WAS NO PROVISION IN THE ESTIMATES FOR PAYMENT FOR THESE GUARD POSTS.

IN ORDER TO ACCOMPLISH THE WORK AS CONTEMPLATED BY THE CONTRACT, THE DISTRICT ENGINEER ESTIMATED THAT THE COST WILL EXCEED THE STIPULATED CONTRACT PRICE OF $386,319 BY $20,225 ITEMIZED AS FOLLOWS:

CHART.

LOCATION NO. 2 AT ROOD CREEK:

RIPRAP AND BEDDING MATERIAL - 350 C.Y. AT $8.00 $2,800

GUARD POSTS- 26 EA. AT 5.00 130

SUBTOTAL $2,930

LOCATION NO. 3 AT LOWER GRASS CREEK:

RIPRAP AND BEDDING MATERIAL - 500 C.Y. AT $8.00 $4,000

EARTHWORK TO WIDEN FILL - 5900 C.Y. AT 0.60 3,540

GUARD POSTS - 178 EA. AT 5.00 890

SUBTOTAL $8,430

LOCATION NO. 4 AT UPPER GRASS CREEK:

RIPRAP AND BEDDING MATERIAL - 1100 C.Y. AT $8.00 $8,800

GUARD POSTS - 13 EA. AT 5.00 65

SUBTOTAL $8,865

TOTAL $20,225

THE PROPOSED SUPPLEMENTAL AGREEMENT WOULD INCREASE THE LUMP SUM TO BE PAID THE COUNTY FROM $386,319 TO $406,544 TO PROVIDE FOR THE COST OF THE ADDITIONAL WORK.

ON THE RECORD PRESENTED IT IS APPARENT THAT THE UNDERSTANDING INTENTION OF THE PARTIES TO THE CONTRACT WAS THAT THE RELOCATION, REARRANGEMENT AND ALTERATION OF THE COUNTY'S PUBLIC ROAD SYSTEM WAS TO BE ACCOMPLISHED IN A MANNER SO THAT THE PROJECT WHEN COMPLETED WOULD BE OF AN EQUAL DEGREE OF UTILITY AND SAFETY AS POSSESSED BY THE OLD FACILITIES. IT IS ALSO APPARENT AS INDICATED IN THE ADMINISTRATIVE REPORT THAT THE LUMP-SUM PAYMENT WAS PREDICATED ON THE ACTUAL COST OF PROVIDING AN ADEQUATE SUBSTITUTE FACILITY WITHOUT ANY ELEMENT OF PROFIT OR OTHER ADVANTAGE ACCRUING TO THE BENEFIT OF THE COUNTY.

ACCORDINGLY, AND SINCE THE APPLICABLE LAW CONTEMPLATES THE REIMBURSEMENT OF LOCAL AUTHORITIES FOR ALL REASONABLE EXPENDITURES FOR LANDS, EASEMENTS AND RIGHTS-OR-WAY, INCLUDING HIGHWAY RELOCATION, WE WOULD NOT BE REQUIRED TO OBJECT TO MODIFICATION OF THE CONTRACT AS PROPOSED. SEE SECTION 2, ACT OF JUNE 28, 1938, 52 STAT. 1215 (33 U.S.C. 701C-1), 83 CONG.REC. 8603- 8616. A REFERENCE TO THIS DECISION SHOULD BE NOTED ON THE MODIFICATION.