B-132678, AUG. 12, 1957

B-132678, AUG. 12, 1957

TO MR. GEORGE T. HAMNER, AUTHORIZED CERTIFYING OFFICER, UNITED STATES DEPARTMENT OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1957, REQUESTING A DECISION AS TO WHETHER PAYMENT MAY BE AUTHORIZED ON INVOICE NO. P 612318, DATED JANUARY 2, 1957, IN THE AMOUNT OF $1,213.59, PRESENTED BY THE INDUSTRIAL PUMP CORPORATION, COVERING CHARGES FOR REPAIRING A TURBINE PUMP AT THE BROOKSVILLE, FLORIDA, FIELD STATION. YOU EXPRESS DOUBT AS TO THE LIABILITY OF THE GOVERNMENT FOR THE COST OF THE REPAIRS IN VIEW OF THE PROVISIONS OF THE CONTRACT UNDER WHICH THE PUMP WAS INSTALLED.

IT APPEARS THAT THE PUMP WAS FURNISHED AND INSTALLED BY THE CLAIMANT CORPORATION ON APRIL 10, 1956, UNDER CONTRACT NO. 12-14-100-574 (53), PURCHASE ORDER NO. S-3963-ARS-56, DATED DECEMBER 19, 1955. THE GUARANTEE PROVISION IN THE INVITATION FOR BIDS, WHICH BECAME A PART OF THE CONTRACT, IS AS FOLLOWS:

"GUARANTEE: THE SUCCESSFUL BIDDER OBLIGATES HIMSELF TO GUARANTEE THE SATISFACTORY OPERATION OF THE UNIT AND ALL OF ITS PARTS UNDER NORMAL USE FOR A PERIOD OF ONE YEAR FROM THE DATE OF DELIVERY AND TO REPLACE WITHOUT COST TO THE GOVERNMENT, ALL PARTS THAT ARE FOUND FAULTY DURING THAT TIME, WHETHER DUE TO DEFECTIVE MATERIALS, FAULTY DESIGN OR WORKMANSHIP.'

THE FAILURE OF THE PUMP IS ATTRIBUTED BY THE CLAIMANT TO THE PROBABLE LACK OF PROPER PRELUBRICATION RESULTING FROM NEGLIGENT OR IMPROPER MAINTENANCE OR OPERATION BY GOVERNMENT PERSONNEL. IN THIS CONNECTION, IT IS STATED IN THE CLAIMANT'S LETTER OF MARCH 7, 1957:

"WE OF COURSE, DO NOT KNOW THE EXACT NATURE OF WHAT CAUSED THE PUMP TO FREEZE, AND ARE ONLY ASSUMING THAT IT WAS DUE TO LACK OF PRE LUBRICATION. THE MATERIALS WERE NOT DEFECTIVE, THEREFORE, A WARRANTY COULD NOT APPLY AND YOU WERE BILLED FOR THE PARTS THAT WERE REPLACED.'

HOWEVER, IN HIS LETTER OF MARCH 6, 1957, TO THE CLAIMANT, MR. W. G. BURNS, WHO IS IN CHARGE OF THE BROOKSVILLE STATION, STATED:

"I AM POSITIVE THAT THE PUMP HAS NEVER BEEN STARTED WITHOUT PRELUBRICATION.'

YOU STATE IN YOUR LETTER OF JULY 23, 1957, THAT THERE APPEARS TO BE NO WAY OF ESTABLISHING CONCLUSIVELY THE ACTUAL CAUSE OF THE TROUBLE.

IT HAS LONG BEEN ESTABLISHED THAT IT IS THE RIGHT AND DUTY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT CLAIMS AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT, AND THAT IT IS THE BURDEN OF A CLAIMANT TO ESTABLISH CLEARLY THE LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. LONGWILL V. UNITED STATES, 17 C.CLS. 288; CHARLES V. UNITED STATES, 19 C.CLS. 316; 18 COMP. GEN. 907; 23 ID. 907; 31 ID. 340. IN THE INSTANT MATTER, SINCE THE FAILURE OF THE PUMP AND THE NEED FOR REPAIRS OCCURRED WITHIN THE GUARANTEE PERIOD AND THE CAUSE OF THE FAILURE IS NOT AGREED OR ESTABLISHED, THE ABOVE-QUOTED GUARANTEE FURNISHES SUFFICIENT BASIS FOR DECLINING TO APPROVE PAYMENT OF THE INVOICE.

IN VIEW OF THE CONCLUSION ABOVE SET OUT, IT APPEARS UNNECESSARY TO DECIDE THE QUESTION AS TO WHETHER THE CLAIMANT FAILED TO FULFILL THE REQUIREMENTS OF THE CONTRACT IN FAILING TO INSTALL A FOOT VALVE WHEN THE PUMP WAS INSTALLED, THE ANSWER TO WHICH QUESTION ALSO APPEARS TO BE OPEN TO DOUBT, THUS FURNISHING A SUPPORTING REASON FOR WITHHOLDING APPROVAL OF PAYMENT OF THE CLAIM.