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344 BOARD OF G O V E R N O R S ******* of t h e FEDERAL RESERVE SYSTEM 5-245 w a s h i n g t o n ADDRESS & OFFICIAL C O R R E S P O N D E N C E TO THE BOARD ******* December 16, 1940 Dear Sir: Some time ago Governor Draper received an inquiry from one of the Federal Reserve Banks with regard to the priority of rights between sureties guaranteeing performance of Government contracts and assignees of contractors' claims against the Government under such contracts. A preliminary investigation was made of the circumstances involved and these are reflected in the attached copy of a memorandum which was prepared for Governor Draper. Subsequently, the matter was referred to a Committee of the National Defense Commission which considers problems arising out of Arny and Navy contracts for consideration of that Committee. We may later be called on for information as to whether similar questions have come to our attention, and it will be appreciated if you will let us know of any cases that come to your attention where it appears that priority of rights of sureties on Government contracts interfered with or tended to retard, financing of such contracts by banks. We will appreciate receiving any suggestions you may wish to make with regard to the effect of existing surety bond requirements on the ability of banks to finance defense contracts. Very truly yours, Chester Morrill, Secretary. Enclosure TO OFFICERS AT FEDERAL RESERVE BANKS AND BRANCHES DESIGNATED AS FIELD REPRESENTATIVES IN CONNECTION WITH NATIONAL DEFENSE PROGRAM. 345 S—245—a November 30, 1940 To: Governor Draper From: Mr. Wingfield, Assistant General Counsel SUBJECT: Priority of rights between sureties guaranteeing performance of Government contracts and assignees of contractors' claims against the Government under such contracts. Pursuant to our previous considerations, I have been looking into the circumstances involved in the inquiry of Mr. in his letter of November 19, 1940, relating to the above matter. The following is set out for your information and as a basis for a discussion with you as to the further direction to be given the matter. Mr. stated that in one case involving the Federal Reserve Bank of ___________ the surety companies had agreed that they would not take an assignment equal or prior to that to be obtained by the Federal Reserve Bank under the contract. He also stated that in the case of a member bank he had advised the bank to enter into negotiations with the surety company and the contractor in an effort to have the surety company stipulate that an assignment obtained by it will be subsequent to any assignment obtained by the lending bank. Mr. suggested that the Board and the Defense Commission arrange with the Army and Navy Departments for a requirement that a surety bond should not contain any clauses for assignment except subordinate to the rights of any lending banks that might take assignments of Government claims pursuant to the new Assignment of Claims Act. It appears to be the general rule of law that where there is a Government contract and a surety bond for performance and subsequently an assignment by the contractor of his claims against the Government to a lending bank the rights of the surety company are prior to any rights of the assignee lending bank. For example, if the contractor should dissipate the loan obtained from the bank and then default on his contract, the surety on the performance bond would have to complete the contract and would be entitled to any unpaid amounts due the contractor. Also, in cases of this kind the surety company may have taken a general lien on the assets of the contractor which would be prior to any claims by the assignee bank. I discussed the matter informally with Mr. the Washington representative of stock surety companies. Mr. _____________ felt that a general requirement of the kind suggested by Mr. would not be workable and might prevent surety companies from bonding Government contracts. He is very anxious, if any further steps are taken in this matter, to request executive representatives of the companies he represents to come to Washington and confer with us regarding the matter. 346 -2- S—245—3' I told him that I was merely collecting information at this time but that I felt sure that if such a requirement should be contemplated we would want to discuss the matter with representatives of his companies before any final action was taken. , of I discussed the matter informally with the Navy. He said that he had not previously had occasion to consider it but that such a requirement might make it difficult for the Navy to obtain performance bonds on their contracts and might be embarrassing in view of the lack of authority in the Navy to waive performance bonds. if he knew whether any further consideration had I asked been given to obtaining an amendment to the statutes making it unnecessary for the Navy to obtain bonds on their contracts. He said that he had not heard of it but that if 1 deemed it desirable he would get in touch with Mr. office with regard to the matter. I said that I was merely obtaining information and would not suggest at this time that he do that. I also discussed the matter with in the War Department , who said that he had not previously had occasion to consider the question. He said that he would give consideration to it and would be glad to confer with us regarding it at any time. At his request, I sent him a copy of Mr. [ s letter for his informal consideration. _ In each of the conversations above referred to, it was mentioned that a surety company might be willing to subordinate its claims to an assignee bank in a case where there was full confidence in the standing and ability of the contractor but would be unwilling to do so where there was some question as to the standing and ability of the contractor. In other words, a surety company would be willing to subordinate its claims in a case where, as a practical matter, such subordination would not mean anything but would be unwilling to subordinate in a case where, as a practical matter, it might be helpful to the assignee bank. In these circumstances, any suggestion regarding negotiations between a bank and a surety company which is short of a requirement for subordination by a surety company might not prove to be very helpful. As a matter of brevity, in the above memorandum, I have referred to performance bonds. The same problems might arise in connection with payment for labor and supplies bonds and bonds given in connection with advances to contractors by the Army or Navy. Respectfully, (Signed) B. Magruder Wingfield Assistant General Counsel.
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