B-125796, FEB. 1, 1956

B-125796: Feb 1, 1956

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7. WERE COLLECTED BY SETOFF FROM AMOUNTS OTHERWISE FOUND DUE THE COMPANY. IT WAS DISCLOSED THAT VARIOUS TOWING CHARGES WERE INCLUDED FOR SERVICES NOT COVERED BY THE TERMS OF THE CONTRACT AND SUSPENSIONS WERE MADE ACCORDINGLY. THE INDIVIDUAL SUSPENSIONS WERE STATED IN THE AGGREGATE AMOUNT OF $9. 917.81 AND THAT SUM WAS COLLECTED AS EXPLAINED IN OUR LETTER OF FEBRUARY 26. IT IS FURTHER SUGGESTED THAT WITH THE EXCEPTION OF THE ITEM OF $3. IT IS SUGGESTED THAT SUCH SETTLEMENT EXCLUDE THE AMOUNT OF $316.32 (COLUMN 5 REFERRED TO IN YOUR LETTER) AS TO WHICH THE SUSPENDED CHARGES WERE BASED ON THE LACK OF IDENTITY OF THE TUGS CONCERNED IN OFFICIAL LISTINGS.

B-125796, FEB. 1, 1956

TO MEYER BERNSTEIN, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1955, ACKNOWLEDGED OCTOBER 7, REQUESTING A REVIEW OF THE COLLECTION ACTION STATED IN OUR CLAIMS DIVISION LETTER DATED FEBRUARY 26, 1954, WHEREBY OVERPAYMENTS FOR CERTAIN TOWING SERVICES AGGREGATING $9,917.81 MADE TO MESECK TOWING LINES, INC., UNDER NAVY CONTRACT NO. N 140S 5758A, DATED JULY 1, 1942, WERE COLLECTED BY SETOFF FROM AMOUNTS OTHERWISE FOUND DUE THE COMPANY.

IN OUR OFFICE AUDIT OF ALL VOUCHER PAYMENTS MADE UNDER THE SUBJECT CONTRACT, IT WAS DISCLOSED THAT VARIOUS TOWING CHARGES WERE INCLUDED FOR SERVICES NOT COVERED BY THE TERMS OF THE CONTRACT AND SUSPENSIONS WERE MADE ACCORDINGLY. THE INDIVIDUAL SUSPENSIONS WERE STATED IN THE AGGREGATE AMOUNT OF $9,917.81 AND THAT SUM WAS COLLECTED AS EXPLAINED IN OUR LETTER OF FEBRUARY 26, 1954, TO YOUR CLIENT. THE REVIEW SUGGESTS THAT ALL THE SUSPENDED ITEMS COVER TOWING SERVICE CHARGES FOR SERVICES ACTUALLY FURNISHED AND BECAUSE OF THE COLLECTION OF THE AMOUNTS OF THE SUSPENSIONS NO PAYMENT FOR SUCH SERVICES HAS BEEN RECEIVED. IT IS FURTHER SUGGESTED THAT WITH THE EXCEPTION OF THE ITEM OF $3,389.37, SETTLEMENT OF THESE QUESTIONED ITEMS ON A 75 PERCENT BASIS REFLECTS A REASONABLE ADJUSTMENT WITHIN CONTEMPLATION OF ARTICLE 4 (C) OF THE CONTRACT. ALSO, IT IS SUGGESTED THAT SUCH SETTLEMENT EXCLUDE THE AMOUNT OF $316.32 (COLUMN 5 REFERRED TO IN YOUR LETTER) AS TO WHICH THE SUSPENDED CHARGES WERE BASED ON THE LACK OF IDENTITY OF THE TUGS CONCERNED IN OFFICIAL LISTINGS--- A MATTER NOW CLEARED.

AN EXAMINATION OF ALL OF THE SUSPENDED VOUCHER PAYMENTS EXCEPT AS TO THE AFOREMENTIONED ITEM OF $316.32 DISCLOSES THAT THE SUSPENSIONS FALL WITH FOUR GENERAL CLASSES AND WERE STATED IN SUBSTANCE FOR THE REASONS, AS FOLLOWS:

(1) PAYMENT SHOULD NOT HAVE BEEN MADE SINCE THE HORSEPOWER OF THE TUG FURNISHED IS LESS THAN THE MINIMUM REQUIRED BY THE CONTRACT.

(2)PAYMENT FOR SERVICES OF TUG NAMED WAS MADE AT RATES IN EXCESS OF THOSE PROVIDED FOR TUGS OF LESS THAN THE REQUIRED HORSEPOWER.

(3) PAYMENT FOR THE TUG NAMED WAS MADE AT RATES IN EXCESS OF THOSE PROVIDED BY PARAGRAPH 11 OF THE CONTRACT.

(4) PAYMENT FOR TIME IN EXCESS OF THAT PROVIDED BY PARAGRAPH 5A OF THE CONTRACT.

THESE CLASSIFICATIONS DO NOT CORRESPOND TO THE COLUMNS LISTED IN YOUR LETTER AS A COPY OF THE ,LISTING OF DISALLOWANCES" IS NOT PRESENTLY AVAILABLE.

UNDER CLASS (1) ABOVE, THE ENTIRE AMOUNT OF THE INDIVIDUAL CHARGE MADE FOR THE QUESTIONED ITEM WAS SUSPENDED ON THE INVOLVED VOUCHERS. OBVIOUSLY, THIS ENTIRE AMOUNT REPRESENTS THE TOTAL OF ALL ITEMS OF SERVICES RENDERED AS TO WHICH NO PAYMENT HAS BEEN RECEIVED BY YOU. THE REMAINING SUSPENSIONS UNDER CLASSES (2), (3), AND (4), ABOVE, REFLECT INDIVIDUAL AMOUNTS IN EXCESS OF THOSE ALLOWABLE UNDER THE CONTRACT FOR THE PARTICULAR SERVICE RENDERED.

WE HAVE GIVEN CONSIDERATION TO YOUR SEVERAL STATEMENTS IN THE MATTER AND IT HAS BEEN CONCLUDED TO ALLOW YOUR CLIENT THE FULL AMOUNT OF $316.32 REFERRED TO AS "COLUMN 5" IN YOUR LETTER AND TO ALLOW THE ITEMS COMPRISING THE CLASS (1) SUSPENSIONS ON THE SUGGESTED 75 PERCENT BASIS, THE RESULTING TOTAL REFLECTING THE REASONABLE VALUE FOR THE COMPLETED SERVICES AND A PROPER ADJUSTMENT IN CONTEMPLATION OF ARTICLE 4 (C) OF THE CONTRACT. ADDITIONAL AMOUNTS ARE CONSIDERED DUE YOU IN CONNECTION WITH THE ITEMS INCLUDED UNDER THE OTHER CLASSES OF SUSPENSIONS SINCE THE AMOUNTS ALLOWED IN CONNECTION WITH THESE VOUCHER PAYMENTS REPRESENT THE ADJUSTMENTS MADE UNDER THE CONTRACT FOR THE SERVICES ACTUALLY RENDERED.

WITH RESPECT TO THE CONTENTION THAT THE TOTAL AMOUNT OVERPAID AND THEREAFTER COLLECTED AS STATED IN OUR LETTER OF FEBRUARY 26, 1954, TO YOUR CLIENT MAY BE IDENTIFIED WITH THE AMOUNT RECAPTURED FROM IT AS EXCESS PROFITS BY THE GOVERNMENT DURING 1943, YOU ARE ADVISED THAT THE GOVERNMENT'S RIGHT TO RECOVER ANY OVERPAYMENT OF PUBLIC FUNDS IS ENTIRELY INDEPENDENT OF ITS RIGHT TO RECOVER EXCESS PROFITS UNDER THE RENEGOTIATION ACT. SEE OUR DECISION OF APRIL 29, 1955, A-60998, TO YOU.

ACCORDINGLY, UPON A RECOMPUTATION OF THE SUSPENDED ITEMS IN QUESTION ON THE BASIS EXPLAINED HEREINABOVE, THE AMOUNT FOUND DUE WILL BE PAID TO YOUR CLIENT AS PROMPTLY AS POSSIBLE.