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B-116238, JUL. 21, 1955

B-116238 Jul 21, 1955
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ESQUIRES: REFERENCE IS MADE TO YOUR LETTER OF MARCH 15. THE BUILDING WAS OCCUPIED BY THE GOVERNMENT UNDER LEASE NO. THE SUPERVISORY SERVICES ARE ALLEGED TO HAVE BEEN PERFORMED BY MR. BARROWS AS PART OF THE COSTS OF ALTERATIONS AND IMPROVEMENTS WAS HELD TO BE UNAUTHORIZED IN DECISION TO YOU OF SEPTEMBER 27. IS CLARA A. IT IS ASSERTED. ALTHOUGH IT MAY HAVE BEEN THE INTENTION OF YOUR CLIENT THAT SUCH AN ITEM SHOULD BE INCLUDED. BARROWS THE ESTIMATED COST OF THE ALTERATIONS WAS LISTED AS $35. " BUT THAT NO MENTION WAS MADE OF ANY ITEM FOR SUPERVISION. BARROWS WAS REQUESTED TO SUBMIT AN ALTERNATIVE PROPOSAL INVOLVING ADDITIONAL ALTERATIONS AND TO FURNISH APPLICABLE COST FIGURES. HE SUBMITTED A REVISED BID WHICH TOOK INTO CONSIDERATION THE ADDITIONAL ALTERATIONS AND THERE WAS ATTACHED TO THE NEW PROPOSAL AN ITEMIZED STATEMENT SHOWING ALL REPAIRS AND ALTERATIONS.

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B-116238, JUL. 21, 1955

TO LYNE, WOODWORTH AND EVARTS, ESQUIRES:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1955, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF YOUR CLIENT, THE PACIFIC WAREHOUSE TRUST, FOR ALLOWANCE OF THE FEE OF $6,000 PAID TO FRANK G. BARROWS BY HIS TRUSTOR FOR SUPERVISORY SERVICES AS PART OF THE COSTS FOR ALTERATIONS AND IMPROVEMENTS MADE TO THE BUILDING LOCATED AT 130 AUCKLAND STREET, DORCHESTER, MASSACHUSETTS. THE BUILDING WAS OCCUPIED BY THE GOVERNMENT UNDER LEASE NO. GS-01B-300, DATED FEBRUARY 15, 1951.

AS PREVIOUSLY POINTED OUT, PARAGRAPH 7 OF THE LEASE PROVIDED FOR AN ANNUAL RENTAL OF $99,500 SUBJECT TO CERTAIN ADJUSTMENTS FOR TAXES AND SUBJECT TO A FURTHER PROVISION TO THE EFFECT THAT, IF THE LESSOR SHOULD SPEND "LESS THAN $123,555.00 IN ALTERATIONS AND IMPROVEMENTS, THE ANNUAL RENT SHALL BE ABATED BY AT LEAST ONE FIFTH OF ANY DIFFERENCE.' THE ITEMIZED LIST SUBMITTED BY THE LESSOR INCIDENT TO THE FOREGOING PROVISION, SHOWING ALTERATION AND IMPROVEMENT COSTS TOTALING $128,290.74, INCLUDED THE ABOVE ITEM FOR $6,000. THE SUPERVISORY SERVICES ARE ALLEGED TO HAVE BEEN PERFORMED BY MR. BARROWS. INCLUSION OF THE FEE FOR $6,000 PAID TO MR. BARROWS AS PART OF THE COSTS OF ALTERATIONS AND IMPROVEMENTS WAS HELD TO BE UNAUTHORIZED IN DECISION TO YOU OF SEPTEMBER 27, 1954, 34 COMP. GEN. 140, AND RECONSIDERATION OF FEBRUARY 15, 1955, B-116238.

YOU ACKNOWLEDGE THAT THE LIFE TENANT, BENEFICIARY UNDER THE TERMS OF THE PACIFIC WAREHOUSE TRUST, IS CLARA A. BARROWS, WIFE OF THE TRUSTEE, AND ALSO THAT THE PROVISIONS OF CLAUSE 7 (H) OF THE DECLARATION OF TRUST CONTAINS THE POWERS AS SET FORTH IN THE RECONSIDERATION OF FEBRUARY 15, 1955. IT IS ASSERTED, HOWEVER, FOR THE REASONS STATED IN YOUR LETTER, THAT THE $6,000 FEE PROPERLY SHOULD BE INCLUDED AS PART OF THE COSTS OF ALTERATIONS AND IMPROVEMENTS.

ALTHOUGH IT MAY HAVE BEEN THE INTENTION OF YOUR CLIENT THAT SUCH AN ITEM SHOULD BE INCLUDED, THE RECORD SHOWS THAT IN THE ORIGINAL BID SUBMITTED BY MR. BARROWS THE ESTIMATED COST OF THE ALTERATIONS WAS LISTED AS $35,425, INCLUDING "FINANCING," BUT THAT NO MENTION WAS MADE OF ANY ITEM FOR SUPERVISION. BY LETTER DATED JANUARY 31, 1951, MR. BARROWS WAS REQUESTED TO SUBMIT AN ALTERNATIVE PROPOSAL INVOLVING ADDITIONAL ALTERATIONS AND TO FURNISH APPLICABLE COST FIGURES. ON FEBRUARY 15, 1951, HE SUBMITTED A REVISED BID WHICH TOOK INTO CONSIDERATION THE ADDITIONAL ALTERATIONS AND THERE WAS ATTACHED TO THE NEW PROPOSAL AN ITEMIZED STATEMENT SHOWING ALL REPAIRS AND ALTERATIONS, TOGETHER WITH COST FIGURES, INCLUDING INTEREST. AGAIN, HOWEVER, NO MENTION WAS MADE OF ANY COST FOR SUPERVISION. SO FAR AS THE RECORD SHOWS THE FEE FOR SUPERVISION WAS FIRST INCLUDED IN THE COSTS FOR ALTERATIONS AND IMPROVEMENTS IN MR. BARROWS' LETTER OF MAY 26, 1951, TO THE CONTRACTING OFFICER.

CONSIDERING THEN THE NATURE OF MR. BARROWS' DUTIES UNDER THE TRUST AGREEMENT AND THE FACT THAT THE NEGOTIATING OFFICER HAS REPORTED THAT THE MATTER OF THE FEE FOR SUPERVISION WAS NEVER DISCUSSED WITH HIM, IT IS CLEAR THAT THERE IS NO LEGAL BASIS FOR CONSIDERING THE ITEM FOR SUPERVISION AS PART OF THE COSTS FOR ALTERATIONS AND IMPROVEMENTS.

ACCORDINGLY, NOTHING IN YOUR LETTER MAY BE REGARDED AS AUTHORIZING OR REQUIRING ANY MODIFICATION OF THE ACTION HERETOFORE TAKEN ON THAT PORTION OF THE LESSOR'S CLAIM BASED ON THE $6,000 FEE FOR SUPERVISION.

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