B-198395.OM, JUL 21, 1980

B-198395.OM, JUL 21, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE CLAIM OF BESELER INTERNATIONAL CORPORATION IN THE AMOUNT OF $12,899.00 FOR PAYMENT OF NON- WARRANTY REPAIRS TO TRAINING AIDS WHICH WERE MADE BY PHORA IN 1975 AND 1976.

THE FILE INDICATES THAT THE REPAIRS WERE MADE BY PHORA, A GERMAN BASED FIRM. BESELER ALLEGES THAT PHORA ACTED AS ITS AGENT IN MAKING THE REPAIRS AND THAT BESELER IS ENTITLED TO REIMBURSEMENT FOR THE COST OF THE REPAIRS. THERE IS DOUBT AS TO THE ACTUAL LEGAL RELATIONSHIP BETWEEN BESELER, LARA (APPARENTLY A FRENCH SUBSIDIARY OF BESELER), AND PHORA. APPEARS THAT LARA, THE FRENCH SUBSIDIARY, MAY HAVE CONTRACTED WITH PHORA TO HAVE PHORA MAKE THE REPAIRS ON THE EQUIPMENT. THUS, IT IS UNCLEAR AS TO WHETHER BESELER'S CLAIM MAY PROPERLY BE PAID SINCE BESELER MAY NOT HAVE HAD ANY DIRECT CONTRACTUAL RELATIONSHIP WITH THE GOVERNMENT.

IN ADDITION, THERE IS DOUBT AS TO THE PROPER AMOUNT WHICH SHOULD BE ALLOWED IF YOU DETERMINE THAT BESELER IS THE PROPER PARTY TO BE PAID ON THIS CLAIM. BESELER HAS PROVIDED THE STATEMENT OF LTC FRANCIS J. WINSLOW THAT THE TOTAL REPAIRS FOR 1975 WERE DM 15, 878.56 AND DM 13,014.75 THROUGH AUGUST 18, 1976. THERE IS ALSO A PHOTOCOPY OF A CHECK DRAWN ON THE FIRST NATIONAL STATE BANK OF NEW JERSEY PAYABLE TO PHORA IN THE AMOUNT OF DM 10,847.88 OR $4,288.47 DATED AUGUST 2, 1976. FINALLY, THERE IS A LIST OF INVOICES FROM PHORA WITH NO INDICATION THAT THEY HAVE BEEN PAID AND WITH NO SUBSTANTIATING EVIDENCE THAT THEY RELATE TO THE PRESENT CLAIM.

IN VIEW OF THE LEGAL UNCERTAINTY AS TO WHETHER BESELER IS A PROPERLY PAYABLE CLAIMANT AND THE UNCERTAINTY AS TO THE AMOUNT WHICH MAY BE DUE UNDER THE CLAIM, THE MATTER IS SUBMITTED FOR YOUR ADVICE AND CONSIDERATION.

ENDORSEMENT

ASSOCIATE DIRECTOR, FGMS DIVISION - CLAIMS GROUP

RETURNED. ATTACHED IS FILE NO. Z-1219294(9), CONCERNING THE CLAIM OF BESELER INTERNATIONAL CORP. FOR REIMBURSEMENT BY THE ARMY OF DM 30,683.11 FOR REPAIRS TO OUT-OF-WARRANTY TRAINING AIDS (CUE/SEE PROJECTORS) REPAIRED IN EUROPE DURING 1975 AND 1976. BESELER HAD A BASIC ORDERING AGREEMENT - NOT A CONTRACT - WITH THE ARMY WHICH CONTEMPLATED PERFORMANCE OF THE REPAIRS IN QUESTION. THE ONLY CONTRACTS CONSISTED OF PURCHASE ORDERS ISSUED BY THE ARMY TO BESELER'S EUROPEAN BUSINESS ASSOCIATES WHO MADE THE REPAIRS IN QUESTION. THESE ASSOCIATES ARE LARA (REFERRED TO VARIOUSLY IN THE FILE AS BESELER'S FRENCH "SUBSIDIARY" AND "DISTRIBUTOR") AND PHORA (BESELER'S "AGENT" IN GERMANY).

THE CLAIM IS REPRESENTED BY INVOICES SUBMITTED BY PHORA AND LARA. BESELER CONTENDS THAT LARA PAID PHORA FOR MOST OF THE WORK PERFORMED IN 1975. BECAUSE BESELER FELT A "MORAL OBLIGATION" TO ITS ASSOCIATES FOR THE WORK PERFORMED, IT REIMBURSED LARA IN THE AMOUNT OF DM 15,878.56 AND PHORA IN THE AMOUNT OF DM 10,847.88. BESELER, IN ITS MARCH 20, 1979, LETTER TO THE ARMY STATES THAT THE REMAINING DM 3,956.67 WAS CREDITED TO LARA'S ACCOUNT IN SMALL AMOUNTS OVER A 2-YEAR PERIOD BUT THAT THESE CHARGE-BACKS ARE NOT READILY AVAILABLE.

ON THE FACTS OF RECORD, LARA AND PHORA ARE THE PROPER CLAIMANTS FOR THE WORK IN QUESTION SINCE BESELER WAS NOT A PARTY TO THE PURCHASE ORDERS AND THE ASSOCIATES DID THE REPAIR WORK. ON THIS POINT, WE SEE NO EVIDENCE IN THE RECORD THAT BESELER AND ITS EUROPEAN ASSOCIATES ARE THE SAME CONTRACTING ENTITY EVEN IF WE ACCEPT THE ABOVE DESCRIPTIONS OF THE ASSOCIATES AS BEING "SUBSIDIARY" AND "AGENT," RESPECTIVELY.

TO THE EXTENT BESELER'S CLAIM IS PREMISED ON LEGAL ENTITLEMENT RATHER THAN MORAL OBLIGATION, IT MUST BE ASSUMED THE CLAIM IS BASED ON AN ASSIGNMENT FROM LARA AND PHORA WHICH IS NOT OF RECORD. IN ANY EVENT, THE CLAIMS MUST BE SUBMITTED BY LARA OR PHORA; THE PUTATIVE ASSIGNMENT WOULD BE IMPROPER UNDER THE ASSIGNMENT OF CLAIMS ACT, 41 U.S.C. SEC. 15 (1976), SINCE BESELER IS NOT A FINANCING INSTITUTION. ALTERNATIVELY, BESELER MAY PURSUE THE CLAIMS ON BEHALF OF ITS ASSOCIATES PROVIDED THE ASSOCIATES AUTHORIZE BESELER'S REPRESENTATION UNDER 4 C.F.R. SEC. 31.3 (1980).

BASED ON THE PRESENT RECORD, THEREFORE, THE CLAIM IS DENIED.