B-150968 May 20, 1963

B-150968: May 20, 1963

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There are transmitted herewith the conflicting claims of the respective parties indicated above in respect of the amount of $9. Contract SW-FA-87 was awarded on December 29. 834.20 were furnished by the contractor. Work was completed and accepted on the project by December 5. (The Internal Revenue Service reports that interest is accruing on the unpaid taxes at the rate of 6 percent per annum to the date of payment.). It is deemed advisable and necessary to submit the matter to your honorable court for adjudication. The claimants of record are being notified of the transmission of their claims to the United States Court of Claims.

B-150968 May 20, 1963

The Honorable, The Chief Justice and Judges of the Court of Claims

Subject: D.K. Beene, d/b/a/ Advance Electric Company

v.

The United States

United States Fidelity and Guaranty Company

v.

The United States

South Forth Worth State Bank

v.

The United States

Pursuant to the provisions of Section 2510, Title 28, of the United States Code, there are transmitted herewith the conflicting claims of the respective parties indicated above in respect of the amount of $9,912.55 due under contract No. FA-Sw-87, awarded by the Federal Aviation Agency to D.K. Beene, an individual trading as Advance Electric Company, for the work necessary to relocate an Instrument Landing System, Approach Light Systems and a Sequence Flashing Light System at Miami International Airport, Miami, Florida. In addition to the $9,912.55 remaining due under contract, the contractor has reserved an extra claim in the approximate amount of $2,700.

Such claims involve controverted questions of law which the interests of the United States require to be tried and adjudicated by your honorable Court.

Contract SW-FA-87 was awarded on December 29, 1961, to D.K. Beene, an individual doing business as Advanced Electric Company, Fort Worth Texas, at a total contract price of $89,636.40. Pursuant to the requirements of the Miller Act, 49 Stat. 793, as amended (40 U.S.C. 270a-270a), performance and payment bonds, each in the penal sum of $44,834.20 were furnished by the contractor, with the United States Fidelity and Guaranty Company of Baltimore, Maryland, as surety thereon. Performance by the contractor proceeded satisfactorily, and work was completed and accepted on the project by December 5, 1962. It appears, however, that the contractor left outstanding accounts under the contract.

By letter dated December 14, 1962, to the contracting officer, the surety made claim to the contract funds remaining in the hands of the Government, up to $19,000 for the payment of outstanding bills for material and labor arising from the subject project.

The South Forth Worth State Bank by letter dated March 19, 1963, to our Office, has claimed the retained funds by virtue of the assignment it received of funds due under contract No. FA-SW-87, on February 15, 1962.

In addition to these claims, the Internal Revenue Service has notified us, by letter of April 3, 1963, that D.K. Beene, d/b/s withholding and FICA tax for the fourth quarter of 1962, in the amount of $7,7532.64, plus accrued interest computed to April 1, 1963, for $86.44, and unpaid FUTA tax for the year 1962 in the amount of $961.06, plus accrued interest computed to April 1, 1963, for $10.72, making an aggregate total liability assessed of $8,810.86 as of that date. (The Internal Revenue Service reports that interest is accruing on the unpaid taxes at the rate of 6 percent per annum to the date of payment.)

In view of the claims of the surety, the assignee-bank, and the tax claim of the Government, it is deemed advisable and necessary to submit the matter to your honorable court for adjudication.

The claimants of record are being notified of the transmission of their claims to the United States Court of Claims, and being furnished with a copy of this letter of transmittal.

Sincerely yours,

JOSEPH CAMPBELL Comptroller General of the United States

Enclosures

As listed on the attached sheets