B-171255, MAR 26, 1971

B-171255, MAR 26, 1971

CONTRACTS - SUBCONTRACTOR - DEFAULT - LIABILITY SUSTAINING PRIOR SETTLEMENT DENYING CLAIM OF DONRAY PRODUCTS CO., AS AN UNPAID SUBCONTRACTOR UNDER AN AIR FORCE PRIME CONTRACT WITH RA-DOR INDUSTRIES, INC. NO CONTRACT EXISTED BETWEEN U.S. AND CLAIMANT FOR THE SUPPLIES DELIVERED TO RA-DOR AND THE AIR FORCE'S REQUEST THAT DELIVERIES UNDER THE SUBCONTRACT BE EXPEDITED DID NOT SERVE TO CREATE ANY IMPLIED OBLIGATIONS. THEREFORE, THERE IS NO BASIS UPON WHICH DONRAY MAY RECOVER FROM THE GOVERNMENT.

TO DONRAY PRODUCTS CO.:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 21, 1970, CONCERNING YOUR CLAIM IN THE AMOUNT OF $15,700.71, AS AN UNPAID SUBCONTRACTOR UNDER AIR FORCE PRIME CONTRACT NO. F33657-67-C-0039 WITH RA-DOR INDUSTRIES, INC. THIS CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED OCTOBER 22, 1968, ON THE GROUND THAT THERE WAS NO CONTRACT BETWEEN YOUR COMPANY AND THE UNITED STATES FOR THE SUPPLIES WHICH YOUR COMPANY DELIVERED TO RA-DOR INDUSTRIES, AND THAT, THEREFORE, NO BASIS EXISTED FOR PAYMENT OF THE CLAIM. FOR REASONS SET OUT BELOW, WE FIND NO LEGAL BASES TO ALLOW YOUR CLAIM.

IT IS YOUR CONTENTION THAT BECAUSE AIR FORCE PERSONNEL URGED THAT YOUR COMPANY CONTINUE DELIVERY OF CUSHIONED PACKAGING TO RA-DOR INDUSTRIES, IN ORDER TO MAINTAIN DELIVERY SCHEDULES NOTWITHSTANDING YOUR FAILURE TO RECEIVE PAYMENT FOR EARLIER DELIVERIES TO RA-DOR UNDER THE SUBJECT CONTRACT, THE GOVERNMENT IS OBLIGATED TO ASSIST YOU IN COLLECTING THE MONEY DUE YOUR COMPANY FROM RA-DOR.

WE HAVE BEEN ADVISED BY THE AIR FORCE THAT A REQUEST WAS MADE TO DONRAY PRODUCTS CO. TO EXPEDITE SHIPMENT OF THE SUBJECT CUSHIONED PACKAGING AND THAT PARTIAL PAYMENTS WERE MADE TO RA-DOR FOR THE PURPOSE OF KEEPING DONRAY PRODUCTS CO. IN PRODUCTION AND FOR THE ADDITIONAL PURPOSE OF MAKING PAYMENTS TO SUBCONTRACTORS. ADDITIONALLY, THE AIR FORCE ADVISED US THAT THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE IN ST. PETERSBURG, FLORIDA, WAS REQUESTED TO CONTACT RA-DOR CONCERNING PAYMENT OF DONRAY'S INVOICES. THE PRIME CONTRACT WITH RA DOR WAS SUBSEQUENTLY TERMINATED FOR DEFAULT AND A RELEASE OF ANY FURTHER OBLIGATIONS UNDER THE CONTRACT OBTAINED FROM RA-DOR.

IN ORDER TO RECOVER ON A CONTRACT CLAIM AGAINST THE GOVERNMENT, IT IS NECESSARY THAT THERE BE PRIVITY OF CONTRACT, I.E., A DIRECT CONTRACTUAL RELATIONSHIP BETWEEN THE CONTRACTOR AND THE GOVERNMENT. SINCE YOUR FIRM WAS A SUBCONTRACTOR, THIS DIRECT RELATIONSHIP DOES NOT EXIST AND THEREFORE NO BASIS EXISTS FOR THE PAYMENT OF YOUR CLAIM BY THE GOVERNMENT. NEITHER IS THE GOVERNMENT UNDER ANY OBLIGATION TO ASSIST YOUR COMPANY IN COLLECTION OF ANY MONEY DUE YOU FROM THE PRIME CONTRACTOR. THE FACT THAT THE AIR FORCE REQUESTED THAT DELIVERIES UNDER YOUR SUBCONTRACT BE EXPEDITED AND MADE PARTIAL PAYMENTS TO THE PRIME CONTRACTOR DID NOT SERVE TO CREATE ANY IMPLIED CONTRACTUAL OBLIGATION BETWEEN YOUR COMPANY AND THE GOVERNMENT. THIS IS SO BECAUSE YOUR COMPANY WAS REQUIRED UNDER THE TERMS OF ITS SUBCONTRACT TO MAKE SUCH DELIVERIES AND BECAUSE WE DO NOT CONSIDER THAT A REQUEST FOR CONTINUED OR EXPEDITED DELIVERIES WOULD LEGALLY OBLIGATE THE GOVERNMENT TO MAKE DIRECT PAYMENTS TO YOUR COMPANY.

ACCORDINGLY, OUR SETTLEMENT OF OCTOBER 22, 1968, IS SUSTAINED.