B-130928, APR. 23, 1957

B-130928: Apr 23, 1957

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UNITED STATES AND MEXICO: REFERENCE IS MADE TO YOUR LETTER OF APRIL 11. SINCE THE TITLE INSURANCE COMPANY WAS THE ONLY BIDDER FOR FURNISHING ABSTRACTS OF TITLE FOR LANDS IN STARR AND ZAPATA COUNTIES UNDER ITEMS 2 (A) THROUGH 2 (H). AN AWARD FOR SUCH ITEMS WAS MADE TO THAT COMPANY. ITEM 2 (A) PROVIDES FOR THE FURNISHING OF PRELIMINARY REPORTS OR PRELIMINARY CERTIFICATES SHOWING THE CONDITION OF TITLE WHERE THERE IS NO TENANCY IN COMMON BUT INCLUDING COMMUNITY OWNERSHIP. ITEM 2 (B) PROVIDES FOR THE FURNISHING OF THE SAME DATA WHERE THE FEE IS OWNED BY TENANTS IN COMMON. THE BID PRICE OF $50 ON ITEM 2 (A) IS CONDITIONED UPON THE ORDERING OF FINAL CERTIFICATES UNDER ITEM 2 (D) AND THE BID PRICE UNDER ITEM 2 (B) OF $50 PLUS $10 FOR EACH TENANT IN COMMON OVER ONE ALSO IS CONDITIONED UPON ORDERING FINAL CERTIFICATES UNDER ITEM 2 (D).

B-130928, APR. 23, 1957

TO COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 11, 1957, SUPPLEMENTING YOUR LETTER OF FEBRUARY 26, 1957, REQUESTING A DECISION AS TO THE PROPRIETY OF A PROPOSED PAYMENT IN THE AMOUNT OF $720.75 TO THE TITLE INSURANCE COMPANY, EL PASO, TEXAS, UNDER CONTRACT IBM-6211, DATED FEBRUARY 21, 1957.

ON THE BASIS OF THE ADDITIONAL INFORMATION NOW FURNISHED, IT APPEARS THAT PRELIMINARY TO ACQUIRING THE NECESSARY RIGHTS-OF-WAY INCIDENT TO THE CONSTRUCTION OF THE FALCON DAM, YOUR COMMISSION CALLED UPON THE DEPARTMENT OF JUSTICE TO INSTITUTE APPROPRIATE PROCEEDINGS TO ACQUIRE THE DAM SITE AND CONSTRUCTION CAMP SITE BEFORE NEGOTIATIONS COULD BE CONDUCTED FOR PURCHASING THE NECESSARY RIGHTS-OF-WAY THEREFOR. SINCE THE TITLE INSURANCE COMPANY WAS THE ONLY BIDDER FOR FURNISHING ABSTRACTS OF TITLE FOR LANDS IN STARR AND ZAPATA COUNTIES UNDER ITEMS 2 (A) THROUGH 2 (H), OF THE INVITATION, AN AWARD FOR SUCH ITEMS WAS MADE TO THAT COMPANY, THE CONTRACT BEING NUMBERED IBM-3951. ITEMS 2 (A) THROUGH 2 (D) RELATE TO LANDS IN STARR COUNTY. ITEM 2 (A) PROVIDES FOR THE FURNISHING OF PRELIMINARY REPORTS OR PRELIMINARY CERTIFICATES SHOWING THE CONDITION OF TITLE WHERE THERE IS NO TENANCY IN COMMON BUT INCLUDING COMMUNITY OWNERSHIP. ITEM 2 (B) PROVIDES FOR THE FURNISHING OF THE SAME DATA WHERE THE FEE IS OWNED BY TENANTS IN COMMON. ITEM 2 (C) PROVIDES FOR THE FURNISHING OF SUPPLEMENTAL REPORTS AND SUPPLEMENTAL CERTIFICATES. ITEM 2 (D) PROVIDES FOR THE FURNISHING OF FINAL CERTIFICATES OF TITLE. THE BID PRICE OF $50 ON ITEM 2 (A) IS CONDITIONED UPON THE ORDERING OF FINAL CERTIFICATES UNDER ITEM 2 (D) AND THE BID PRICE UNDER ITEM 2 (B) OF $50 PLUS $10 FOR EACH TENANT IN COMMON OVER ONE ALSO IS CONDITIONED UPON ORDERING FINAL CERTIFICATES UNDER ITEM 2 (D).

THE RECORD SUBMITTED SHOWS THAT BY ORDERS NUMBERED D-1570 AND D 1684, DATED JULY 13, AND JULY 21, 1948, RESPECTIVELY, AN AGGREGATE OF 14 PRELIMINARY CERTIFICATES WERE ORDERED UNDER 2 (A) OF THE CONTRACT ON THE ASSUMPTION THAT THERE WERE NO TENANTS IN COMMON. IT IS REPORTED, HOWEVER, THAT THIS ASSUMPTION WAS ERRONEOUS AND THAT THE FEE TO THE LAND INVOLVED WAS HELD BY TENANTS IN COMMON SO THAT ACTUALLY THE CONTRACT RATE UNDER ITEM 2 (B) WAS APPLICABLE, THEREBY ENTITLING THE CONTRACTOR TO PAYMENT FOR THE REPORTS AND CERTIFICATES FURNISHED ON THE BASIS OF THE RATE STIPULATED UNDER THAT ITEM, THE AGGREGATE AMOUNT FOR THE 14 CERTIFICATES BEING STATED AS $810. IT APPEARS THAT FOLLOWING THE ISSUANCE OF THE PRELIMINARY CERTIFICATES THE DEPARTMENT OF JUSTICE DETERMINED THAT DUE TO THE CHAOTIC CONDITIONS OF THE TITLE TO THE LANDS INVOLVED IT WOULD BE NECESSARY TO INSTITUTE CONDEMNATION PROCEEDINGS TO INSURE ACQUISITION OF A SATISFACTORY TITLE IN THE UNITED STATES AND THAT THE FINAL CERTIFICATES WOULD SERVE NO USEFUL PURPOSE. IT APPEARS THAT IN THE MEANTIME, HOWEVER, THE CONTRACTOR CONTENDED THAT SINCE THE CONTRACT PRICE FOR THE PRELIMINARY REPORTS AND CERTIFICATES FURNISHED UNDER 2 (B) WAS CONTINGENT UPON THE ORDERING OF FINAL CERTIFICATES UNDER UNDER 2 (D), IT COULD NOT BILL OR BE PAID FOR SUCH PRELIMINARY REPORTS AND CERTIFICATES UNTIL THE COMMISSION HAD ORDERED THE FINAL CERTIFICATES. YOU STATE THAT THE COMMISSION AGREED WITH THE CONTRACTOR'S CONTENTION AND ORDERED THE FINAL CERTIFICATES AND THAT THE CONTRACTOR HAS BEEN PAID FOR THE PRELIMINARY REPORTS AND CERTIFICATES.

AS THE SITUATION NOW STANDS, IT APPEARS THAT ACTUALLY NO FINAL CERTIFICATES HAVE BEEN FURNISHED BY THE CONTRACTOR AND THAT NONE CAN BE FURNISHED UNTIL CONCLUSION OF THE CONDEMNATION PROCEEDINGS AND THE RECORDING OF THE DEEDS TO THE UNITED STATES. SINCE THE VALUE OF THE LAND DETERMINES THE AMOUNT TO BE PAID THE CONTRACTOR FOR THE FINAL CERTIFICATES AND SINCE FINAL JUDGMENTS HAVE NOT BEEN ENTERED IN THE CONDEMNATION PROCEEDINGS, THEREBY PRECLUDING ANY FINAL DETERMINATION AS TO THE VALUE OF THE LAND CONDEMNED, THE COMMISSION FOR THE PURPOSE OF FACILITATING COMPLETION OF THE CONTRACT PURSUANT TO THE CONTRACTOR'S REQUEST IS REPORTED TO HAVE SUPPLIED THE CONTRACTOR WITH THE AMOUNTS ESTIMATED AS JUST COMPENSATION FOR THE 14 PARCELS DEPOSITED WITH THE DECLARATIONS OF TAKING. ON THE BASIS OF SUCH INFORMATION THE CONTRACTOR HAS CONCLUDED THAT BASED ON THE METHOD OF DETERMINING THE CONTRACT PRICE FOR THE FINAL CERTIFICATES IT WOULD HAVE BEEN ENTITLED TO $1,220.75 FOR FURNISHING THE FINAL CERTIFICATES. IN THIS CONNECTION, IT IS STATED, IN EFFECT, IN YOUR LETTER OF APRIL 11, 1957, THAT AS THE TRIALS IN THE CONDEMNATION PROCEEDINGS PROGRESS, THE ACTUAL VALUE AS AWARDED UNDER THE FINAL JUDGMENTS ALMOST INVARIABLY EXCEEDS THE ESTIMATED AWARDS FILED WITH THE DECLARATIONS OF TAKING. FURTHER, IT IS STATED THAT AFTER THE FINAL CERTIFICATES WERE ORDERED THE CONTRACTOR BECAME OBLIGATED TO ITS LOCAL REPRESENTATIVES FOR WORK PREPARATORY TO THE ISSUANCE OF SUCH FINAL CERTIFICATES, AS WELL AS FOR THE WORK INCIDENT TO SUPPLYING THE PRELIMINARY REPORTS AND CERTIFICATES, THE TWO TRANSACTIONS BEING INTERRELATED.

ESSENTIALLY, THE FACTS AS REPORTED BY YOU PRESENT A SITUATION WHEREBY THE CONTRACTOR IS CLAIMING A FAIR COMPENSATION FOR SERVICES PERFORMED AS THOUGH THE CONTRACT, IN EFFECT, HAD BEEN TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT, SINCE THE CONTRACT CONTAINS NO PROVISION FOR PAYMENT IN THE EVENT OF PARTIAL PERFORMANCE. WHILE THE EXPENSES INCURRED PREPARATORY TO FURNISHING THE FINAL CERTIFICATES PURSUANT TO ORDERS THEREFOR ISSUED BY YOUR COMMISSION CANNOT BE COMPLETELY ESTABLISHED DUE TO LACK OF ACCURATE COST DATA, SINCE THE CLAIMED AMOUNT HAS BEEN DETERMINED BY YOU TO BE FAIR AND REASONABLE UNDER THE CIRCUMSTANCES, WE WOULD NOT BE REQUIRED TO OBJECT TO THE PROPOSED PAYMENT OF THE AMOUNT OF $720.75 CLAIMED ON THE VOUCHER AS IN FULL AND FINAL PAYMENT FOR THE 14 ABSTRACTS ORDERED UNDER THE CONTRACT.