B-149922, JAN. 23, 1963

B-149922: Jan 23, 1963

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TO UNITED STATES FIDELITY AND GUARANTY COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 15. UPON FURTHER EXAMINATION OF THE RECORD WE FIND THAT THE REDUCTION WAS IN ERROR. IS HEREINAFTER EXPLAINED. THE REDUCTION WAS MADE ON THE BASIS OF THE CONTRACTING OFFICER'S STATEMENT OF THE EXCESS INCURRED BY REASON OF THE CONTRACTOR'S DEFAULT. WAS ENCLOSED WITH OUR LETTER OF DECEMBER 13. BY REFERENCE TO PAGE 3 OF THE REPORT IT WILL BE SEEN THAT THE CONTRACTING OFFICER SHOWED THE TOTAL AMOUNT PAID THE CONTRACTOR AS $131. ON THE BASIS OF THE SHOWING THUS MADE IT WAS CONCLUDED IN THE LETTER OF DECEMBER 13. BY REFERENCE TO PAGE3 THEREOF IT WILL BE SEEN THAT THE PAYMENTS MADE TO THE CONTRACTOR AGGREGATED ONLY THE SUM OF $131.

B-149922, JAN. 23, 1963

TO UNITED STATES FIDELITY AND GUARANTY COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 15, 1963, WITH ENCLOSURES, IN REPLY TO OUR LETTER OF DECEMBER 13, 1962, WHEREIN WE ADVISED YOUR COMPANY, AMONG OTHER THINGS, THAT BECAUSE OF MATHEMATICAL ERROR THE AMOUNT OF $2,182.27, CERTIFIED BY OUT CLAIMS DIVISION TO BE DUE THE UNITED STATES FROM THE MERCURY AUTOMATIC FIRE ALARM COMPANY, INC., UNDER CONTRACT NO. DA -30-075-ENG-8160, SHOULD BE REDUCED TO THE SUM OF OF $1,649.77.

UPON FURTHER EXAMINATION OF THE RECORD WE FIND THAT THE REDUCTION WAS IN ERROR, AND IS HEREINAFTER EXPLAINED. THE REDUCTION WAS MADE ON THE BASIS OF THE CONTRACTING OFFICER'S STATEMENT OF THE EXCESS INCURRED BY REASON OF THE CONTRACTOR'S DEFAULT, A COPY OF THE CONTRACTING OFFICER'S REPORT AND FINDINGS OF FACT DATED JUNE 15, 1960, WAS ENCLOSED WITH OUR LETTER OF DECEMBER 13, 1962. BY REFERENCE TO PAGE 3 OF THE REPORT IT WILL BE SEEN THAT THE CONTRACTING OFFICER SHOWED THE TOTAL AMOUNT PAID THE CONTRACTOR AS $131,700.19. THAT AMOUNT APPEARED TO INCLUDE THE AMOUNT OF $532.50 WHICH THE CONTRACTING OFFICER THEREAFTER INCLUDED IN HIS "CHARGES" UNDER THE CONTRACT. ON THE BASIS OF THE SHOWING THUS MADE IT WAS CONCLUDED IN THE LETTER OF DECEMBER 13, 1962, THAT THAT AMOUNT SHOULD NOT BE INCLUDED AS AN ITEM DUE FROM THE CONTRACTOR. AS A MATTER OF INFORMATION IT MAY BE SAID THAT THE DEPARTMENT OF THE ARMY TRANSMITTED TO OUR CLAIMS DIVISION A CHECK DATED DECEMBER 11, 1958, IN THE AMOUNT OF $532.50, COVERING UNPAID WAGES DUE CERTAIN EMPLOYEES OF THE CONTRACTOR UNDER THE INDICATED CONTRACT.

WE ENCLOSE FOR YOUR INFORMATION A COPY OF THE CERTIFICATE OF INDEBTEDNESS DATED JULY 26, 1962, BY WHICH OUR CLAIMS DIVISION CERTIFIED THE MERCURY AUTOMATIC FIRE ALARM COMPANY, INC., TO BE INDEBTED TO THE UNITED STATES IN THE NET AMOUNT OF $2,182.27. BY REFERENCE TO PAGE3 THEREOF IT WILL BE SEEN THAT THE PAYMENTS MADE TO THE CONTRACTOR AGGREGATED ONLY THE SUM OF $131,167.69, OR $532.50 LESS THAN THE AMOUNT SHOWN BY THE CONTRACTING OFFICER AS HAVING BEEN PAID UNDER THE CONTRACT. THE AMOUNT OF $532.50, WHILE NOT PAID TO THE CONTRACTOR, REPRESENTS A SUM OBVIOUSLY CHARGED TO THE APPROPRIATION FOR THE PERFORMANCE OF THE CONTRACT WORK AND WITHHELD BECAUSE OF VIOLATIONS BY THE CONTRACTOR OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, AND CONSTITUTES A PROPER CHARGE AGAINST THE CONTRACTOR. IF THAT AMOUNT IS NOT INCLUDED IN THE TOTAL CHARGES IT WOULD RESULT IN PAYMENT BY THE UNITED STATES OF THE UNPAID WAGES.

IN YOUR LETTER THERE WAS EXPRESSED THE WILLINGNESS OF YOUR COMPANY TO PAY THE AMOUNT OF $1,649.77 PROVIDED THE GOVERNMENT REFUNDS TO YOU A DEPOSIT OF $5,500 MADE BY YOU UNDER THE INDICATED CONTRACT, THE FACTS CONCERNING WHICH HAVING BEEN DISCUSSED IN PREVIOUS CORRESPONDENCE. THE ERROR IN THIS CASE IS REGRETTED. HOWEVER, ON THE BASIS OF THE RECORD IT IS BELIEVED YOU WILL AGREE THAT WE HAVE NO ALTERNATIVE BUT TO ASSERT A CLAIM FOR $2,182.27 AS THE AMOUNT PROPERLY DUE THE UNITED STATES.

IT WILL BE APPRECIATED IF WE MAY HAVE YOUR ACCEPTANCE OF THE INCREASED AMOUNT OF $2,182.27, AND UPON RECEIPT OF YOUR ADVICE SO INDICATING, IT IS OUR INTENTION TO ADDRESS A LETTER TO THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, SETTING FORTH THE FACTS AND CONDITIONS IN CONNECTION WITH THE DEPOSIT OF THE CLAIMED REFUND OF $5,500, AND MAKING INQUIRY AS TO WHETHER THE AMOUNT WILL BE ..END :

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