B-174476(2), DEC 7, 1971

B-174476(2): Dec 7, 1971

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SECRETARY: REFERENCE IS MADE TO A LETTER DATED AUGUST 25. THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO MODULAR HOUSING WHICH DISALLOWS PARTS A AND C OF THE CLAIM. SINCE THE NECESSARY FACTUAL DETERMINATIONS HAVE NOT BEEN MADE FOR PAYMENT TO MODULAR HOUSING FOR ITS PERFORMANCE. IT IS OUR VIEW THAT INITIAL DETERMINATION AND SETTLEMENT OF THE AMOUNT WHICH MAY BE DUE UNDER THE CONTRACT SHOULD BE MADE BY YOUR DEPARTMENT. WE ARE RETURNING THE ADMINISTRATIVE FILE. WHICH WAS FORWARDED WITH THE LETTER OF AUGUST 25. YOU WILL NOTE THAT WE HAVE ADVISED THE CONTRACTOR THAT. THERE ARE ENCLOSED FOR YOUR READY REFERENCE COPIES OF OUR LETTERS TO YOUR DEPARTMENT DATED NOVEMBER 17.

B-174476(2), DEC 7, 1971

CONTRACT - DETERMINATION OF AMOUNTS DUE RETURNING FILE FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY OF THE AMOUNTS OF LIQUIDATED DAMAGES ASSESSABLE, THE EXPENSES INCURRED BY THE GOVERNMENT IN COMPLETING THE CONTRACT, AND ANY AMOUNTS STILL DUE MODULAR HOUSING, INC., ON A CONTRACT LET BY THE BUREAU OF INDIAN AFFAIRS, ALBUQUERQUE, N.M.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 25, 1971, FROM YOUR DEPUTY ASSISTANT SECRETARY FOR MANAGEMENT AND BUDGET, FURNISHING THIS OFFICE A REPORT ON THE CLAIM OF MODULAR HOUSING, INC., ARISING OUT OF INVITATION FOR BIDS NO. BIA-0150-70-17 ISSUED BY THE BUREAU OF INDIAN AFFAIRS, ALBUQUERQUE, NEW MEXICO.

THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO MODULAR HOUSING WHICH DISALLOWS PARTS A AND C OF THE CLAIM. IT APPEARS, HOWEVER, THAT AFTER DETERMINATION OF THE AMOUNTS OF LIQUIDATED DAMAGES ASSESSABLE AND THE EXPENSES INCURRED IN COMPLETION OF THE CONTRACT BY THE GOVERNMENT, THERE MAY BE AMOUNTS STILL DUE THE CONTRACTOR FOR ITS SUBSTANTIAL PERFORMANCE UNDER CONTRACT NO. 14-20-0150-1037 FOR ITEM NO. 2 OF THE IFB. SINCE THE NECESSARY FACTUAL DETERMINATIONS HAVE NOT BEEN MADE FOR PAYMENT TO MODULAR HOUSING FOR ITS PERFORMANCE, AND ANY DISPUTES AS TO THOSE DETERMINATIONS WOULD SEEM TO BE SUBJECT TO THE ADMINISTRATIVE PROCEDURES SET OUT IN THE DISPUTE CLAUSE OF THE CONTRACT, IT IS OUR VIEW THAT INITIAL DETERMINATION AND SETTLEMENT OF THE AMOUNT WHICH MAY BE DUE UNDER THE CONTRACT SHOULD BE MADE BY YOUR DEPARTMENT, AND THAT THE CLAIM HAS BEEN PREMATURELY PRESENTED TO THIS OFFICE. THEREFORE, WE ARE RETURNING THE ADMINISTRATIVE FILE, WHICH WAS FORWARDED WITH THE LETTER OF AUGUST 25, FOR USE BY YOUR DEPARTMENT IN MAKING THE NECESSARY DETERMINATIONS AND PAYMENT OF THE AMOUNT FOUND DUE THE CONTRACTOR IN ACCORDANCE WITH THE CONTRACT PROVISIONS. YOU WILL NOTE THAT WE HAVE ADVISED THE CONTRACTOR THAT, AFTER EXHAUSTION OF ITS ADMINISTRATIVE REMEDIES, IT MAY THEN COME TO THIS OFFICE FOR ANY ADDITIONAL RELIEF IT MAY CONSIDER APPROPRIATE.

CONCERNING THE FINAL PARAGRAPH OF THE CONTRACTING OFFICER'S REPORT, WHEREIN THAT OFFICIAL REQUESTS GUIDANCE AS TO WHAT COGNIZANCE SHOULD BE GIVEN TO THE NOTICE OF INTENTION TO FILE LIEN AND STATEMENT OF ACCOUNT, SUCH REQUEST APPEARS TO BE FOR CONSIDERATION IN THE FIRST INSTANCE BY APPROPRIATE OFFICIALS OF YOUR DEPARTMENT. IN SUCH CONNECTION, THERE ARE ENCLOSED FOR YOUR READY REFERENCE COPIES OF OUR LETTERS TO YOUR DEPARTMENT DATED NOVEMBER 17, 1969, AND JANUARY 14, 1970, B-168267, WHICH MAY BE OF SOME ASSISTANCE.