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B-123530, FEB. 23, 1956

B-123530 Feb 23, 1956
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SMITH AERIAL SURVEYS: REFERENCE IS MADE TO LETTERS OF DECEMBER 9. ARE SET FORTH IN THE DECISION AND NEED NOT BE REPEATED HEREIN. IN THE REQUEST FOR RECONSIDERATION THERE IS STRESSED THE FACT THAT YOU ENCOUNTERED CERTAIN HARDSHIPS DURING THE ATTEMPTS TO FULLY PERFORM THE SUBJECT CONTRACT AND REFERENCE IS MADE TO YOUR SEVERAL DISCUSSIONS WITH ADMINISTRATIVE OFFICIALS IN THE MATTER AND OTHER PROBLEMS INCIDENTAL THERETO. WHILE SUGGESTING YOU ENTERTAIN SOME DOUBT AS TO THE CORRECTNESS OF THE ADMINISTRATIVE REPORTS UPON WHICH OUR DECISION IS PREDICATED. WHICH TERMINATED YOUR RIGHT TO PROCEED BECAUSE OF DEFAULT AND CONTAINED A DETERMINATION THAT YOUR FAILURE TO COMPLETE THE WORK WAS NOT DUE TO ANY EXCUSABLE CAUSES SET FORTH IN THE CONTRACT.

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B-123530, FEB. 23, 1956

TO CLARKE L. SMITH AERIAL SURVEYS:

REFERENCE IS MADE TO LETTERS OF DECEMBER 9, 1955, AND JANUARY 3, 1956, FROM YOUR ATTORNEY, IN EFFECT, REQUESTING RECONSIDERATION OF THE MATTER OF YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $103,376.08, AS STATED IN OFFICE DECISION DATED JULY 7, 1955, TO YOU.

THE FACTS AND CIRCUMSTANCES RELATIVE TO YOUR DEFAULT UNDER CONTRACT NO. W -49-018-ENG-1355, DATED MAY 29, 1947, ARE SET FORTH IN THE DECISION AND NEED NOT BE REPEATED HEREIN. IN THE REQUEST FOR RECONSIDERATION THERE IS STRESSED THE FACT THAT YOU ENCOUNTERED CERTAIN HARDSHIPS DURING THE ATTEMPTS TO FULLY PERFORM THE SUBJECT CONTRACT AND REFERENCE IS MADE TO YOUR SEVERAL DISCUSSIONS WITH ADMINISTRATIVE OFFICIALS IN THE MATTER AND OTHER PROBLEMS INCIDENTAL THERETO, PARTICULARLY IN RESPECT TO YOUR CONTENTIONS REGARDING THE IMPOSSIBILITY OF PERFORMANCE OF THE CONTRACT. THESE FACTORS, TOGETHER WITH THE REMAINING CONTENTS OF THE CURRENT LETTERS APPEAR TO BE RESTATEMENTS OF YOUR PRIOR CONTENTIONS AND, WHILE SUGGESTING YOU ENTERTAIN SOME DOUBT AS TO THE CORRECTNESS OF THE ADMINISTRATIVE REPORTS UPON WHICH OUR DECISION IS PREDICATED, NO ADDITIONAL EVIDENCE HAS BEEN PRESENTED WHICH WOULD WARRANT OUR OFFICE IN DISREGARDING THE FACTS REPORTED BY THE ADMINISTRATIVE OFFICE. SEE 20 COMP. GEN. 573, 578, AND DECISIONS CITED THEREIN.

WITH REGARD TO THE QUESTION AS TO WHETHER YOU RECEIVED THE LETTER OF MARCH 23, 1949, FROM THE CONTRACTING OFFICER, WHICH TERMINATED YOUR RIGHT TO PROCEED BECAUSE OF DEFAULT AND CONTAINED A DETERMINATION THAT YOUR FAILURE TO COMPLETE THE WORK WAS NOT DUE TO ANY EXCUSABLE CAUSES SET FORTH IN THE CONTRACT, THERE HAS BEEN RECEIVED A PHOTOSTAT COPY OF A REGISTERED RETURN RECEIPT SHOWING THAT THE LETTER WAS DELIVERED TO YOUR ADDRESS AND THE RECEIPT SIGNED BY "LEONA M. ATWELL.' ALSO, WITH REGARD TO THE CONTENTION THAT WHEN THE WORK WAS READVERTISED THE ARMY MAPPING SERVICE INSERTED A "NEW REQUIREMENT OF A PERFORMANCE BOND" AND THEREFORE THE AMOUNTS PAID UNDER THE TWO RESULTING CONTRACTS COULD NOT BE USED AS A MEASURE OF DAMAGES, IT MAY BE POINTED OUT THAT WHILE THIS ACTION NO DOUBT INCREASED THE COST OF PERFORMANCE BY THE AMOUNT OF THE COST OF SUCH BONDS WHICH IS SHOWN BY THE RECORD TO BE $909.29, IT APPEARS DOUBTFUL THAT THE COST OF THE WORK WAS INCREASED BY ANY FURTHER AMOUNT. IN ANY EVENT, THE NATURE OF THE WORK WAS NOT CHANGED AND THE EXCESS COST WITH WHICH YOU ARE CHARGEABLE MUST BE REGARDED AS THE DIFFERENCE BETWEEN WHAT THE WORK WOULD HAVE COST THE GOVERNMENT HAD YOU COMPLETED YOUR CONTRACT AND THAT PAID UNDER THE TWO COMPLETING CONTRACTS LESS THE COST OF THE PERFORMANCE BONDS.

AS YOUR ATTORNEY WAS ADVISED DURING HIS RECENT VISIT HERE, OUR OFFICE, ON THE BASIS OF THE PRESENT RECORD, HAS NO ALTERNATIVE BUT TO REPORT THE MATTER TO THE DEPARTMENT OF JUSTICE FOR APPROPRIATE ACTION. IN REPLY TO YOUR ATTORNEY'S REQUEST IN LETTER OF JANUARY 3, 1956, REGARDING HIS DESIRE OF CONFERRING WITH THAT DEPARTMENT, IT IS SUGGESTED THAT THE REQUEST MAY BE ADDRESSED TO THE ATTORNEY GENERAL, WASHINGTON 25, D.C., OR YOU MAY AWAIT WORD FROM THE UNITED STATES ATTORNEY TO WHOM THE CASE IS ASSIGNED.

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