B-133613, FEB 19, 1959

B-133613, FEB 19, 1959

PRECIS-UNAVAILABLE

G. HINTEREGGER & SOEHN:

REFERENCE IS MADE TO YOUR ATTORNEY'S LETTER OF DECEMBER 24, 1958, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM IN THE AMOUNT OF $7,561.26 FOR ADDITIONAL PAYMENT UNDER CONTRACT NO. DA-91-808-USFA-75, DATED JULY 27, 1951, COVERING THE CONSTRUCTION OF TEN MESS HALLS IN THE SALZBURG, SIEZENHEIM AREA. IT IS SUGGESTED IN THE LETTER THAT OUR OFFICE "EFFECT AN EQUITABLE SETTLEMENT WHERE A LEGAL REMEDY WAS LACKING."

IT MAY BE STATED THAT THIS OFFICE IS WITHOUT AUTHORITY TO SETTLE CLAIMS AGAINST THE UNITED STATES SOLELY ON THE BASIS OF EQUITABLE OR MORAL CONSIDERATIONS. ITS JURISDICTION IS RESTRICTED TO THE CONSIDERATION AND ALLOWANCE OF CLAIMS WHICH CLEARLY ARE FOR PAYMENT IN ACCORDANCE WITH THE APPLICABLE LAW OR UNDER THE TERMS OF A VALID AGREEMENT EXECUTED PURSUANT TO LAW. THE CONTRACT INVOLVED IN THE INSTANT MATTER SPECIFICALLY PROVIDED THAT "THE DECISION OF THE COMMANDING GENERAL, U S FORCES IN AUSTRIA, OR THAT OF HIS DULY AUTHORIZED REPRESENTATIVE (OTHER THAN THE CONTRACTING OFFICER UNDER THIS CONTRACT) FOR THE HEARING OF SUCH APPEALS UPON PERSONAL APPROVAL BY THE COMMANDING GENERAL, U S FORCES IN AUSTRIA, OR HIS DESIGNATED DEPUTY SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES HERETO WHEN THE AMOUNT INVOLVED IN THE APPEAL IS $50,000 OR LESS; ***." IN VIEW OF THE QUOTED PROVISION OF THE CONTRACT, IT SEEMS CLEAR THAT NO OFFICER OR AGENCY OF THE UNITED STATES IS AUTHORIZED TO TAKE ACTION ON YOUR CLAIM CONTRARY TO THE DECISION OF THE BOARD OF CONTRACT APPEALS AS REPRESENTATIVE OF THE COMMANDING GENERAL, IN THE ABSENCE OF FRAUD OR BAD FAITH.

ALTHOUGH THE FOREGOING IS REGARDED AS DECISIVE OF THE INSTANT MATTER, IT MAY BE ADDED THAT THERE APPEARS NO CLEAR SHOWING THAT YOUR CLAIM IS MERITORIOUS EVEN FROM THE VIEWPOINT OF EQUITY. THE CONTRACTING OFFICER'S FINDINGS OF FACT AND DETERMINATION DATED NOVEMBER 28, 1952, INDICATES THAT HE CONSIDERED THE VARIOUS ITEMS OF YOUR CLAIM CAREFULLY, APPROVING SOME ITEMS AND DISAPPROVING OTHERS. ON APPEAL, THE BOARD OF CONTRACT APPEALS ALSO ALLOWED SOME ITEMS AND DISALLOWED OTHERS UNDER BOTH OF THE CONTRACTS INVOLVED. LIKEWISE, ON FURTHER APPEAL, THE ARMED SERVICES BOARD OF CONTRACT APPEALS ALLOWED SOME ITEMS AND DISALLOWED OTHERS UNDER CONTRACT NO. DA-91-808-USFA-126 AND HELD THAT IT WAS WITHOUT JURISDICTION TO CONSIDER THE MERITS OF THE APPEAL AS TO CONTRACT NO. DA-91-808-USFA-75. NEITHER OF THE BOARDS ALLOWED THE ITEMS NOW INCLUDED IN YOUR CLAIM. SINCE THERE WERE TWO CONTRACTS INVOLVED COVERING DIFFERENT BUILDINGS, IT CANNOT BE ASSUMED THAT THE ARMED SERVICES BOARD OF CONTRACT APPEALS WOULD HAVE ALLOWED THE ITEMS COMPRISING YOUR PRESENT CLAIM IF IT HAD TAKEN JURISDICTION UNDER THE PERTINENT CONTRACT.

IT LONG HAS BEEN THE ESTABLISHED RULE OF OUR OFFICE AND THE COURTS THAT THOSE ASSERTING CLAIMS AGAINST THE UNITED STATES HAVE THE BURDEN OF ESTABLISHING THEIR VALIDITY AND THE ACCOUNTING OFFICERS ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY FOR PAYMENT CLAIMS NOT SO ESTABLISHED. LONGWILL V. UNITED STATES, 17 C. CLS. 288, 291; CHARLES V. UNITED STATES, 19 C. CLS. 316, 319; 18 COMP. GEN. 199; 26 ID. 776, 781.

FOR THE REASONS ABOVE SET OUT AND SPECIFICALLY BECAUSE OF THE ABOVE QUOTED CONTRACT PROVISION MAKING THE DECISION OF THE COMMANDING GENERAL, U S FORCES IN AUSTRIA, FINAL AND CONCLUSIVE, THERE IS NO VALID BASIS FOR ALLOWANCE OF ANY PART OF YOUR CLAIM.