B-179702, OCT 10, 1973

B-179702, OCT 10, 1973

WHERE CONTRACTOR REQUESTED INVESTIGATION OF FACTS CONCERNING BREACH OF CONTRACT CLAIM FOR ADDITIONAL SCRAP, ALLEGEDLY OWING UNDER SURPLUS SALES CONTRACT, GAO MUST DECLINE REQUEST SINCE CLAIMANT SEEKS EQUITABLE REMEDY OF SPECIFIC PERFORMANCE, AS DISTINCT FROM CLAIM FOR MONETARY DAMAGES, AND GAO, LACKING AUTHORITY TO CONSIDER EQUITABLE CLAIMS IN ABSENCE OF EXPRESS STATUTORY AUTHORITY, IS NOT AUTHORIZED TO CONSIDER EQUITABLE CLAIMS FOR SPECIFIC PERFORMANCE.

TO BETZENDORFER & DEUTSCHER:

WE REFER TO YOUR LETTER OF SEPTEMBER 11, 1973, WITH ENCLOSURES, ON BEHALF OF J. SIMON & SONS, INC., REQUESTING AN INVESTIGATION OF FACTS CONCERNING A BREACH OF CONTRACT CLAIM THE CORPORATION HAS MADE AGAINST THE DEFENSE SUPPLY AGENCY (DSA) FOR NONDELIVERY OF 100 TONS OF SCRAP MATERIAL ALLEGEDLY OWED UNDER CONTRACT NO. 41-3150-028. THE CORPORATION REQUESTS THAT DSA COMPLY WITH THE TERMS OF THE CONTRACT BY DELIVERY TO IT OF THE 100 TONS IN QUESTION.

THE RELIEF REQUESTED IS FOR SPECIFIC PERFORMANCE OF THE CONTRACT AND IS PURELY EQUITABLE IN NATURE. SEE 49 AM. JUR., SPECIFIC PERFORMANCE, SECTION 2. ALTHOUGH WE HAVE JURISDICTION TO CONSIDER CLAIMS FOR MONETARY DAMAGES RESULTING FROM BREACH OF CONTRACT BY THE GOVERNMENT WHEN THERE IS NO DOUBT REGARDING THE LIABILITY OF THE GOVERNMENT AND THE AMOUNT OF DAMAGE CAN BE DETERMINED WITH REASONABLE CERTAINTY, WE HAVE JURISDICTION TO CONSIDER CLAIMS FOR EQUITABLE RELIEF ONLY WHEN SPECIFICALLY AUTHORIZED BY STATUTE. SEE, FOR EXAMPLE, 31 U.S.C. 236 AND 41 U.S.C. 256(A). AND WE HAVE NOT BEEN GIVEN AUTHORITY TO CONSIDER EQUITABLE CLAIMS FOR SPECIFIC PERFORMANCE.

SINCE WE DO NOT HAVE JURISDICTION TO CONSIDER YOUR CLAIM, WE MUST DECLINE YOUR REQUEST FOR AN INVESTIGATION OF THE MATTER.