B-116535, APR. 2, 1956

B-116535: Apr 2, 1956

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 21. CONTAINED A DETAILED STATEMENT OF THE FACTS AND CIRCUMSTANCES INVOLVED AND THE REASONS FOR CONCLUDING THAT THE DELTA DRAINAGE AND CONSTRUCTION COMPANY IS INDEBTED TO THE UNITED STATES FOR $6. YOU ARE REQUESTING REIMBURSEMENT AT THE RATE OF $0.22 A CUBIC YARD FOR 52. IT APPEARS THAT THIS ISSUE WAS DECIDED IN OUR DECISION OF NOVEMBER 25. WHEREIN IT IS STATED IN THE NEXT TO LAST PARAGRAPH THAT "WHILE THE ONLY PAY ITEM UNDER THE CONTRACT WAS EXCAVATION. SINCE YOU HAVE PRESENTED NO NEW OR ADDITIONAL EVIDENCE WHICH WOULD JUSTIFY A MODIFICATION OR REVERSAL OF THE ACTION HERETOFORE TAKEN IN THE MATTER.

B-116535, APR. 2, 1956

TO J. ROBERTSHAW, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 21, 1956, WITH ENCLOSURE, CONCERNING THE CLAIM OF THE GOVERNMENT AGAINST YOUR CLIENT, DELTA DRAINAGE AND CONSTRUCTION COMPANY, AND ASSERTING A COUNTERCLAIM ON BEHALF OF YOUR CLIENT IN THE SUM OF $11,432.85.

OFFICE DECISION, B-116535 OF NOVEMBER 25, 1953, TO YOU AS ATTORNEY, CONTAINED A DETAILED STATEMENT OF THE FACTS AND CIRCUMSTANCES INVOLVED AND THE REASONS FOR CONCLUDING THAT THE DELTA DRAINAGE AND CONSTRUCTION COMPANY IS INDEBTED TO THE UNITED STATES FOR $6,723.21, REPRESENTING THE NET BALANCE OF LIQUIDATED DAMAGES AND EXCESS COSTS RESULTING FROM DEFAULT AND PENALTIES FOR LABOR LAW VIOLATIONS, AFTER ALLOWING CREDIT FOR THE TOTAL QUANTITY OF MATERIALS EXCAVATED BY THE COMPANY.

IN YOUR PRESENT CLAIM, YOU ARE REQUESTING REIMBURSEMENT AT THE RATE OF $0.22 A CUBIC YARD FOR 52,674 CUBIC YARDS OF EXCAVATION PERFORMED UNDER CONTRACT NO. DA-40-041-ENG-294, DATED MAY 5, 1950, AS MODIFIED. SINCE THE RECORD IN THIS CASE ESTABLISHES THAT YOUR CLIENT HAS BEEN GIVEN FULL CREDIT FOR THE ENTIRE 52,674 CUBIC YARDS OF EXCAVATION, AT THE CONTRACT RATE OF $0.167 PER CUBIC YARD, YOUR PRESENT CLAIM MUST BE DISALLOWED.

WITH RESPECT TO YOUR CLAIM OF $0.071 PER CUBIC YARD FOR CLEANING, DISPOSING OF DEBRIS AND ADJUSTMENT OF SPOIL, IT APPEARS THAT THIS ISSUE WAS DECIDED IN OUR DECISION OF NOVEMBER 25, 1953, WHEREIN IT IS STATED IN THE NEXT TO LAST PARAGRAPH THAT "WHILE THE ONLY PAY ITEM UNDER THE CONTRACT WAS EXCAVATION, THE UNIT PRICE THEREFOR INCLUDED FULL COMPENSATION FOR FURNISHING ALL MATERIALS AND EQUIPMENT AND FOR REMOVAL OF DRIFT, SUNKEN LOGS AND OTHER DEBRIS AND CLEARING THE ENTIRE AREA WITHIN THE LIMITS OF THE DITCH EXCAVATION AND 20-FOOT STRIPS ON EACH SIDE OF THE DITCH.'

ACCORDINGLY, FOR THE REASONS HEREINABOVE STATED, AND SINCE YOU HAVE PRESENTED NO NEW OR ADDITIONAL EVIDENCE WHICH WOULD JUSTIFY A MODIFICATION OR REVERSAL OF THE ACTION HERETOFORE TAKEN IN THE MATTER, YOUR PRESENT CLAIM MUST BE DISALLOWED.