B-159372, JUN. 28, 1966

B-159372, JUN. 28, 1966

TO THE SECRETARY OF THE INTERIOR:

BY LETTER DATED JUNE 7, 1966, WITH ENCLOSURES, DEPUTY ASSISTANT SECRETARY GEORGE E. ROBINSON REQUESTED OUR DECISION AS TO WHETHER CONTRACT NO. 14-06 -700-1239 DATED NOVEMBER 8, 1956, BETWEEN THE BUREAU OF RECLAMATION AND THE COUNTY OF PLATTE, WYOMING, MAY BE AMENDED TO PROVIDE FOR ADDITIONAL ROAD CONSTRUCTION AND THE PURCHASE OF SNOW REMOVAL EQUIPMENT FOR THE COUNTY.

THE CONTRACT, AMONG OTHERS, COVERED THE CONSTRUCTION OF A COUNTY ROAD ABOUT 16 MILES IN LENGTH IN REPLACEMENT OF AN EAST-WEST COUNTY ROAD OF ABOUT 8 MILES IN LENGTH WHICH FORMERLY CUT THROUGH THE RESERVOIR AREA APPROXIMATELY 3 MILES NORTH OF GLENDO DAM AND RESERVOIR, OREGON TRAIL DIVISION, MISSOURI RIVER BASIN PROJECT. IT IS STATED THAT THE PURPOSE OF THE PROPOSED AMENDMENT (SUPPLEMENTAL CONTRACT NO. 1) WOULD BE TO REMEDY DEFICIENCIES IN THE RELOCATED ROAD AS CONSTRUCTED BY THE BUREAU AND TO ACQUIRE FOR THE COUNTY MAINTENANCE AND SNOW REMOVAL EQUIPMENT WHICH IS REQUIRED BECAUSE OF CERTAIN OBJECTIONABLE CONDITIONS PREVAILING ON A PORTION OF THE ALINEMENT OF THE RELOCATED ROAD THAT WERE NOT PRESENT ON THE ROAD IN ITS ORIGINAL LOCATION.

DURING THE NEGOTIATIONS AND PRIOR TO EXECUTION OF THE CONTRACT, THE COUNTY WAS ADVISED BY THE BUREAU THAT THE NEW RELOCATED ROAD, THOUGH CONSIDERABLY LONGER, WOULD BE AT LEAST AS GOOD AS THE ONE IT REPLACED IN THE RESERVOIR AREA. THE NEW RELOCATED ROAD WAS TRANSFERRED TO THE COUNTY ON SEPTEMBER 15, 1958, FOR USE AND MAINTENANCE IN ACCORDANCE WITH THE PROVISIONS OF THE RELOCATION CONTRACT. ARTICLES 3 AND 7 OF THE CONTRACT PROVIDE:

"3. UPON COMPLETION OF THE WORK INVOLVED HEREIN, THE OFFICER OF THE BUREAU OF RECLAMATION IN CHARGE OF THE GLENDO UNIT OF THE MISSOURI RIVER BASIN PROJECT SHALL NOTIFY THE COUNTY IN WRITING THAT SUCH RELOCATION AND RECONSTRUCTION WORK HAS BEEN COMPLETED. UNLESS WRITTEN NOTICE TO THE CONTRARY IS RECEIVED FROM THE COUNTY WITHIN 30 DAYS THEREAFTER, SUCH WORK SHALL BE CONCLUSIVELY PRESUMED TO BE ACCEPTED BY THE COUNTY AS SATISFACTORY. AFTER THE COMPLETION AND FINAL ACCEPTANCE OF THE WORK AS HEREINABOVE PROVIDED, THE SAID RELOCATED ROADS AND RECONSTRUCTED ROADS, INCLUDING ROADWAY ACROSS GLENDO DAM AND DIKES, SHALL BE MAINTAINED BY THE COUNTY AT ITS SOLE COST AND EXPENSE.

"7. UPON THE PERFORMANCE OF THIS CONTRACT BY THE UNITED STATES ACCORDING TO THE TERMS AND CONDITIONS THEREOF, THE COUNTY HEREBY FOREVER RELEASES AND DISCHARGES THE UNITED STATES FROM ALL LIABILITY FOR DAMAGE RESULTING FROM THE RELOCATION, CONSTRUCTION, OR RECONSTRUCTION OF COUNTY ROADS AS A RESULT OF THE CONSTRUCTION OF GLENDO DAM AND RESERVOIR WHICH NECESSITATED SAID RELOCATION, CONSTRUCTION, AND RECONSTRUCTION.'

THE PROBLEM AREAS ON THE ALINEMENT OF THE RELOCATED ROAD AND THE JUSTIFICATIONS FOR EXECUTION OF THE PROPOSED AMENDMENT ARE EXPLAINED IN THE JUNE 7 LETTER AS FOLLOWS:

"DURING 1964, A 100-FOOT SECTION ALONG THE CENTERLINE OF THE ROAD WAS INVOLVED IN A LANDSLIDE WHEREBY THE FILL PORTION OF THE ROADBED SLID TOWARD THE RIVER, LEAVING APPROXIMATELY ONE-HALF OF THE ROADBED LOCATED IN SIDE HILL CUT ON FIRM GROUND. THE COUNTY RESTORED THE ROADWAY BY REPLACING THE FILL ON THE DOWNHILL ONE-HALF OF THE ROADBED AT A COST OF APPROXIMATELY $3,000. A SIMILAR SLIDE OCCURRED IN JUNE 1965 ON AN ADJACENT SECTION OF ROADWAY. THIS, TOO, HAS BEEN REPAIRED BY PLATTE COUNTY AT A COST OF APPROXIMATELY $4,000. * * *

"SURVEY CROSS SECTIONS OF THE SLIDE SLOPES ON THE RIVER SIDE OF THE ROADWAY TAKEN APRIL 2, 1966, ESTABLISH THE FACT THAT THE FILL SECTION HAS NOT STABILIZED AND FURTHER SERIOUS SUBSIDENCE IS IN EVIDENCE. * * *

"PROBLEM AREA NO. 2 CONCERNS THE STEEP UPHILL GRADE (7.75 PERCENT) CONTIGUOUS WITH THE SOUTH OR RIGHT ABUTMENT OF THE DAM. THIS GRADE, APPROXIMATELY 1,800 FEET LONG, IS LOCATED ON A NORTHERLY SLOPE WHICH CAUSES IT TO RETAIN ICE AND SNOW ON THE ROADWAY SURFACE DURING THE WINTER MONTHS. * * * COUNTY OFFICIALS STATE THAT FREQUENTLY VEHICLES, INCLUDING SCHOOL BUSES, MUST PUT CHAINS ON TO NEGOTIATE THIS GRADE.

"PROBLEM AREA NO. 3 CONCERNS THE ALINEMENT OF THE RELOCATED ROAD APPROXIMATELY 3 MILES SOUTH OF GLENDO. AT THIS POINT, THE ROAD ALINEMENT TRAVERSES THE CENTERLINE OF A SERIES OF THREE DIKES WHICH WERE CONSTRUCTED AS A PART OF THE PROJECT TO RETAIN THE WATER IN THE RESERVOIR WHEN IT IS AT MAXIMUM LEVELS. A SHORT RADIUS CURVE IN THE ROADWAY ALINEMENT FORMS THE CONNECTION BETWEEN ROAD SECTIONS LOCATED ON THE CRESTS OF TWO OF THE DIKES AND NUMEROUS VEHICLES HAVE LEFT THE ROAD AT THIS POINT, EVEN THOUGH GUARD POSTS HAVE BEEN ERECTED. * * *

"AS A RESULT OF THE DIFFICULTIES THE RESIDENTS OF THE COUNTY HAVE ENCOUNTERED IN THE USE OF THE NEW ROAD, PRIVATE CITIZENS AND THE PLATTE COUNTY BOARD OF COMMISSIONERS, HAVE, ON NUMEROUS OCCASIONS, COMPLAINED THAT THE GOVERNMENT DID NOT KEEP ITS PROMISE TO CONSTRUCT A ROAD THAT WAS AS GOOD AS THE ORIGINAL ONE THAT WAS INUNDATED BY THE RESERVOIR. ADDITION TO BEING LONGER AND MORE COSTLY TO MAINTAIN, IT IS MORE SUSCEPTIBLE TO ADVERSE WEATHER CONDITIONS, MORE ACCIDENTS HAVE OCCURRED DUE TO A DEFICIENCY OF ALINEMENT, AND A PORTION OF THE ROADBED IS LOCATED IN AN UNSTABLE FOUNDATION, THE CONTINUAL RESTORATION OF WHICH IS BEYOND THE COUNTY'S PHYSICAL PLANT AND FINANCIAL CAPABILITY.

"THE COMMUNITY'S DISSATISFACTION WAS VOICED TO BUREAU OF RECLAMATION REPRESENTATIVES OF THE PROJECT MANAGER'S OFFICE, CASPER, WYOMING, ON AUGUST 12, 1965, IN A MEETING ATTENDED BY LOCAL RESIDENTS, SCHOOL OFFICIALS, AND THE PLATTE COUNTY BOARD OF COMMISSIONERS. AT THIS MEETING, IT WAS POINTED OUT THAT THE COUNTY WAS AGAIN HAVING TO REPAIR THE ROADWAY AT THE SLIDE ABOVE THE LEFT ABUTMENT OF THE DAM. THEY FELT THAT THEY WERE ONLY ABLE TO PERFORM A TEMPORARY REPAIR, AND THE PROBLEM HERE WOULD RECUR. THEY REQUESTED THAT ADEQUATE MEASURES BE TAKEN AS SOON AS POSSIBLE TO CORRECT ALL THREE OF THE DEFICIENCIES IN THE RELOCATED ROAD NOTED ABOVE SO THAT IT WOULD BE AT LEAST AS GOOD AS THE ROAD PREVIOUSLY USED BEFORE CONSTRUCTION OF GLENDO DAM.

"NOTWITHSTANDING THE PREVIOUS POSITION TAKEN BY REPRESENTATIVES OF THE BUREAU OF RECLAMATION THAT THE ROAD WAS CONSTRUCTED TO STANDARDS SET FORTH IN THE 1956 AGREEMENT, IT IS THE DETERMINATION OF THE REGIONAL DIRECTOR, WHO IS THE CONTRACTING OFFICER UNDER THE RELOCATION CONTRACT, THAT AS A MATTER OF FACT BOTH PARTIES TO THE CONTRACT ERRED, AND CONSTRUCTION OF THE ROAD WAS DEFICIENT IN THE FOLLOWING RESPECTS:

"1. THE GOVERNMENT ERRED IN NOT PROPERLY EVALUATING THE GEOLOGIC CONDITIONS IN TRYING TO LOCATE THE ROADWAY ABOVE THE LEFT ABUTMENT OF THE DAM ON A TRANSVERSE CUT AND FILL SIDE HILL SECTION.

"2. IN LOCATING THE ROADWAY ON A STEEP GRADE ABOVE THE RIGHT ABUTMENT ON A NORTHERLY SLOPING HILLSIDE, NEITHER PARTY REALIZED THAT DURING THE WINTER MONTHS IT CREATED A MAINTENANCE PROBLEM THAT IS BEYOND THE COUNTY'S CAPABILITY TO CORRECT WITH ITS EXISTING EQUIPMENT.

"3. IN DESIGNING THE ROAD, THE GOVERNMENT PROPOSED, AND THE COUNTY ACCEPTED, PLANS WITH A 25 DEGREE CURVE BETWEEN DIKES NO. 1 AND 2, THREE MILES SOUTH OF GLENDO, WYOMING. SURFACING MATERIALS WERE NOT PLACED ON THE ROAD UNTIL CONSTRUCTION OF THE DAM WAS COMPLETE SINCE THIS PART OF THE COUNTY ROAD WAS ALSO USED AS A CONSTRUCTION ACCESS ROAD. AFTER THE GOVERNMENT PAVED THE ROAD WITH BITUMINOUS SURFACING MATERIALS, TRAFFIC SPEED INCREASED, AND THE SHARP CURVE AT THIS LOCATION BECAME AN OBVIOUS TRAFFIC HAZARD.'

IT IS REPORTED THAT THE TOTAL COST FOR CORRECTING THE ROAD DEFICIENCIES IS ESTIMATED AT $149,000, $12,000 OF WHICH REPRESENTS THE COST OF THE MAINTENANCE AND SNOW REMOVAL EQUIPMENT TO BE FURNISHED TO THE COUNTY. FURTHER JUSTIFICATION FOR THE EXPENDITURE REPRESENTED BY THE PROPOSED AMENDMENT, IT IS STATED THAT:

"IT WAS THE INTENTION OF BOTH THE COUNTY AND THE GOVERNMENT THAT A ROAD OF EQUIVALENT STANDARDS, SAFE FOR OPERATION OF VEHICLES, BE PROVIDED BY THE RELOCATED ROAD CONSTRUCTED BY THE GOVERNMENT. WHILE THE COUNTY WAS RESPONSIBLE AND DID REVIEW THE PLANS AND SPECIFICATIONS, THEY, BECAUSE OF THEIR LIMITED KNOWLEDGE AND UNFAMILIARITY WITH THE INTRICACIES OF PROPER DESIGN FOR THE CONSTRUCTION REQUIRED, RELIED ON THE GOVERNMENT'S ENGINEERING JUDGMENT IN A FIELD WHICH WAS THE GOVERNMENT'S FORTE. IT IS THE DETERMINATION OF THE CONTRACTING OFFICER THAT MUTUAL MISTAKES OF FACT OCCURRED AND EXISTED AS TO THE PERPLEXING GEOLOGICAL CONDITIONS ENCOUNTERED, THE FAILURE TO FORESEE THE SNOW AND ICING PROBLEM, AND THE INHERENT DANGER OF THE SHORT RADIUS CURVE. THE TRUE PHYSICAL FACTS WERE NOT KNOWN, OR THEIR SIGNIFICANCE NOT APPRECIATED, BY EITHER THE GOVERNMENT OR THE COUNTY AT THE TIME THE RELOCATION CONTRACT WAS EXECUTED AND THE WORK PERFORMED. IN ORDER TO CORRECT THE RESULTS OF THESE MUTUAL MISTAKES, IT WILL BE NECESSARY TO ENTER INTO A SUPPLEMENTAL CONTRACT TO RECONSTRUCT THE TWO SEGMENTS OF THE ROAD AND PROVIDE SNOW REMOVAL EQUIPMENT AS OUTLINED ABOVE. THE COUNTY FEELS THAT THEY CAN ASSUME ALL FUTURE MAINTENANCE AND ANNUAL OPERATING COSTS IF THE DEFICIENCIES IN THE THREE PROBLEM AREAS ARE CORRECTED. IT IS DETERMINED TO BE IN THE BEST INTEREST OF THE UNITED STATES TO CORRECT THESE CONSTRUCTION DEFICIENCIES.

"THE SITUATION IN THIS CASE, INVOLVING AS IT DOES UNSATISFACTORY GEOLOGICAL AND DESIGN CONDITIONS WHICH WERE NOT FORESEEN AT THE TIME THE CONTRACT BETWEEN THE UNITED STATES AND PLATTE COUNTY WAS CONSUMMATED, AND WHICH HAVE RESULTED IN FAILURE AND HAZARDS TO PUBLIC SAFETY, IS SIMILAR TO THAT COVERED IN COMP. GEN. B-151280, MAY 6, 1963.'

THE EVIDENCE AS HERETOFORE SET FORTH REASONABLY ESTABLISHES THAT THE PARTIES WERE MUTUALLY MISTAKEN AS TO THE UNUSUAL GEOGRAPHIC CONDITIONS INHERENT IN THE CONSTRUCTION OF THE RELOCATED ROAD AND THAT THE DESIGN ENGINEERING USED BY THE BUREAU DID NOT TAKE INTO CONSIDERATION THE PERPLEXING GEOGRAPHIC CONDITIONS THAT WOULD BE ENCOUNTERED DURING CONSTRUCTION. APART FROM THIS, ALTHOUGH THE ROAD WAS ACCEPTED BY THE COUNTY, IT APPEARS THAT AFTER USING THE ROAD DEFECTS APPEARED WHICH WERE NOT APPARENT AT THE TIME OF ACCEPTANCE AND, THEREFORE, THE GOVERNMENT FAILED TO MEET ITS OBLIGATION TO CONSTRUCT A ROAD OF EQUIVALENT STANDARDS THAT WOULD BE AS GOOD AS THE ROAD IT REPLACED, AND THAT THE STANDARDS OF CONSTRUCTION USED DID NOT FAIRLY COMPLY WITH STATE-COUNTY STANDARDS. SEE B-156391 DATED APRIL 19, 1965.

CONCERNING THE LEGAL EFFECT OF ARTICLE 7, ABOVE, ON THE PROPOSED AMENDMENT, WE NOTE THAT AFTER ARTICLE 7 CAME INTO FORCE AND EFFECT THE CONDUCT OF THE PARTIES WAS SUCH AS WOULD EVIDENCE AN INTENTION THAT THEY NEVER CONSTRUED THE ARTICLE AS PRECLUDING THE EVENTUAL EXECUTION OF THE AMENDMENT OR THAT CORRECTIVE ACTION BY THE GOVERNMENT WOULD BE NECESSARY. THAT BEING THE CASE, WE DO NOT BELIEVE THAT ARTICLE 7, PER SE, LEGALLY PRECLUDES EXECUTION OF THE PROPOSED AGREEMENT. SEE WINN SENTER CONSTRUCTION CO., ET AL. V. UNITED STATES, 110 CT. CL. 34; J. G. WATTS CONSTRUCTION COMPANY V. UNITED STATES, 161 CT. CL. 801, 807.

HOWEVER, THE FURNISHING OF MAINTENANCE AND SNOW REMOVAL EQUIPMENT TO THE COUNTY AS PART OF THE CONSIDERATION OF THE PROPOSED CONTRACT AMENDMENT WOULD NOT BE PROPER. THE PARTIES TO THE CONTRACT--- WHICH COVERED ONLY THE RELOCATION AND ABANDONMENT OF COUNTY ROADS--- CANNOT BY AMENDMENT OR MODIFICATION TRANSFORM THE EXISTING CONTRACT INTO A NEW OR DIFFERENT ONE. THE PROPOSED AMENDMENT AS DRAFTED WOULD HAVE THE EFFECT OF ALTERING AN OBLIGATION TO RELOCATE ROADS AS GOOD AS THE FORMER ROADS TO ONE WHICH WOULD PROVIDE THE COUNTY WITH PHYSICAL ASSETS NOT ORIGINALLY CONTEMPLATED OR CONTRACTED FOR. THIS IS CONTRARY TO THE LEGAL THEORY AND BASIS OF CONTRACT MODIFICATION AND/OR AMENDMENT WHICH IMPLY CHANGE OR VARIANCE IN SOME PARTICULAR OF AN ALREADY CREATED OR LEGALLY EXISTING RIGHT; THAT IS, IN THIS SITUATION, A PROPERLY CONSTRUCTED RELOCATED ROAD. SEE SCHNEIDER V. UNITED STATES, 19 CT.CL. 547, 551; BOARD OF DIRECTORS, ETC. V. BOARD OF EDUCATION, ETC., 97 N.W.2D 166, 167; 19 COMP. GEN. 662, 666.

SUBJECT TO THE FOREGOING, WE WOULD HAVE NO OBJECTION TO THE PROPOSED AMENDMENT. SEE B-151280, MAY 6, 1963, CITED IN THE DEPUTY ASSISTANT SECRETARY'S LETTER. AS REQUESTED, THE FILES TRANSMITTED WITH THE LETTER OF JUNE 7 ARE RETURNED HEREWITH.