A-66863, JULY 21, 1936, 16 COMP. GEN. 51

A-66863: Jul 21, 1936

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AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF JANUARY 3. SOUERS AND THOMAS IS INDEBTED TO THE GOVERNMENT IN THE AMOUNT OF $1. THE UNITED STATES IS OR WILL BECOME INDEBTED TO PROUDFOOT. THE NECESSARY EFFECT OF YOUR DECISION IS TO PLACE THE BURDEN OF COLLECTING THE GOVERNMENT'S CLAIM ON WETHERELL AND HARRISON. WHO WERE NOT PARTIES TO THE TRANSACTIONS RESULTING IN THE OVERPAYMENT. WAS ONLY $371.80 (1). IT IS THE OPINION OF THIS DEPARTMENT THAT IF PAYMENT OF ANY PORTION OF THE BALANCE OF $3. 040.40 IS TO BE DENIED. IS THE MOST WHICH CAN BE JUSTLY WITHHELD AND IT IS SO RECOMMENDED. IS THEREFORE RESPECTFULLY REQUESTED. IS ENCLOSED TOGETHER WITH A COPY OF YOUR DECISION. (1) PARAGRAPH 3 ON PAGE 2 OF THAT LETTER STATED: "UNDER DATE OF SEPTEMBER 9.

A-66863, JULY 21, 1936, 16 COMP. GEN. 51

RECONSIDERATION OF DECISIONS OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES THE ACTING COMPTROLLER GENERAL OF THE UNITED STATES MAY NOT RECONSIDER THE FINAL DECISION OF A MATTER MADE BY HIS PREDECESSOR IN OFFICE, THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES, EXCEPT UPON PRODUCTION OF NEW AND MATERIAL EVIDENCE, OR TO CORRECT MANIFEST MISTAKES OF FACT, OR FOR FRAUD OR COLLUSION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, JULY 21, 1936:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 20, 1936, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF JANUARY 3, 1936 (A-66863), RENDERED IN RESPONSE TO THIS DEPARTMENT'S LETTER OF OCTOBER 19, 1935, REQUESTING ADVICE AS TO WHAT PORTION, IF ANY, OF A BALANCE OF $3,040.40 DUE WETHERELL AND HARRISON, ARCHITECTS, AND PROUDFOOT, RAWSON, SOUERS AND THOMAS, CONSULTANTS, UNDER ARCHITECTURAL CONTRACT TLSA 3058 (DES MOINES, IOWA, POST OFFICE), SHOULD BE WITHHELD AND APPLIED IN REDUCTION OF AN OVER- PAYMENT IN THE AMOUNT OF $1,284.05 TO PROUDFOOT, RAWSON, SOUERS AND THOMAS, ARCHITECTS, AND HERBERT A. KENNISON UNDER ARCHITECTURAL CONTRACT TLSA 1802 (DUBUQUE, IOWA, POST OFFICE).

YOU HELD AS FOLLOWS:

"SINCE IT APPEARS THE FIRM OF PROUDFOOT, RAWSON, SOUERS AND THOMAS IS INDEBTED TO THE GOVERNMENT IN THE AMOUNT OF $1,284.05, AND THE UNITED STATES IS OR WILL BECOME INDEBTED TO PROUDFOOT, RAWSON, SOUERS AND THOMAS AND THE FIRM OF WETHERELL AND HARRISON JOINTLY IN THE AMOUNT OF $3,040.40, THE ENTIRE AMOUNT OF THE INDEBTEDNESS OF PROUDFOOT, RAWSON, SOUERS AND THOMAS TO THE GOVERNMENT UNDER THE DUBUQUE CONTRACT SHOULD BE WITHHELD FROM ANY BALANCE OTHERWISE PAYABLE JOINTLY TO SAID FIRM AND THE FIRM OF WETHERELL AND HARRISON UNDER THE DES MOINES CONTRACT.'

THE NECESSARY EFFECT OF YOUR DECISION IS TO PLACE THE BURDEN OF COLLECTING THE GOVERNMENT'S CLAIM ON WETHERELL AND HARRISON, WHO WERE NOT PARTIES TO THE TRANSACTIONS RESULTING IN THE OVERPAYMENT. THIS DEPARTMENT'S LETTER OF OCTOBER 19, 1935, POINTED OUT THAT THE SHARE OF THE BALANCE OF $3,040.40 APPORTIONABLE TO PROUDFOOT, ETC., WAS ONLY $371.80 (1).

IT IS THE OPINION OF THIS DEPARTMENT THAT IF PAYMENT OF ANY PORTION OF THE BALANCE OF $3,040.40 IS TO BE DENIED, THE AMOUNT OF THE DELINQUENT ARCHITECTS' SHARE IN THAT BALANCE, NAMELY $371.80, IS THE MOST WHICH CAN BE JUSTLY WITHHELD AND IT IS SO RECOMMENDED.

RECONSIDERATION OF YOUR DECISION OF JANUARY 3, 1936, IS THEREFORE RESPECTFULLY REQUESTED.

A COPY OF THIS DEPARTMENT'S LETTER OF OCTOBER 19, 1935, IS ENCLOSED TOGETHER WITH A COPY OF YOUR DECISION.

(1) PARAGRAPH 3 ON PAGE 2 OF THAT LETTER STATED: "UNDER DATE OF SEPTEMBER 9, 1935, WETHERELL AND HARRISON, AND PROUDFOOT, ETC., ADVISED THAT THE LATTER HAD BEEN PAID $1,408.00 ON ACCOUNT. THE CONSULTANTS' SHARE OF THE FOREGOING BALANCE IS THEREFORE COMPUTED AS FOLLOWS: "TOTAL ARCH. FEE ---- -------------- $17,086.04 DEDUCT .3 PERCENT OF $355,959.21 --- 1,067.87 DIVIDED BY 9 ------------------------------ - 9 INTO $16,018.16

---------- TOTAL CONSULTANTS' COMPENSATION ------------------ $1,779.80 DEDUCT PAYMENTS ON ACCOUNT ----------------------- 1,408.00 CONSULTANTS' SHARE OF BALANCE DUE ---------------------------- $371.80"

AS INDICATED IN YOUR LETTER, THE ASSERTED FACT THAT WETHERELL AND HARRISON HAD PAID PROUDFOOT, RAWSON, SOUERS AND THOMAS ALL BUT $371.80 OF THE COMPENSATION TO WHICH THE LATTER WERE ENTITLED UNDER THE AGREEMENT BETWEEN THE TWO FIRMS AS ARCHITECTS AND CONSULTANTS ENGAGED IN CONNECTION WITH EXTENSION AND REMODELING OF THE POST OFFICE BUILDING AT DES MOINES, IOWA--- TO WHICH AGREEMENT THE GOVERNMENT WAS NOT A PARTY, THE OBLIGATION OF THE UNITED STATES UNDER CONTRACT TLSA-3058 BEING TO BOTH FIRMS JOINTLY- -- AND THE FACT THAT THE SAID AMOUNT OF $371.80 WAS LESS THAN THE INDEBTEDNESS OF PROUDFOOT, RAWSON, SOUERS AND THOMAS AND THEIR ASSOCIATE HERBERT A. KENNISON TO THE GOVERNMENT UNDER CONTRACT TLSA-1802, WERE APPARENT FROM THE RECORD WHICH WAS BEFORE THE FORMER COMPTROLLER GENERAL WHEN HIS DECISION OF JANUARY 3, 1936, WAS RENDERED IN THIS MATTER.

IT IS A PRINCIPLE OF LONG STANDING THAT AN OFFICER OF THE GOVERNMENT MAY NOT REOPEN A SETTLEMENT OR REVERSE A DECISION MADE BY HIS PREDECESSOR IN OFFICE EXCEPT UPON PRODUCTION OF NEW AND MATERIAL EVIDENCE, OR TO CORRECT MANIFEST MISTAKES OF FACT SUCH AS ERRORS IN CALCULATION, OR FOR FRAUD OR COLLUSION (UNITED STATES V. BANK OF THE METROPOLIS, 15 PET. 377, 401; NOBLE V. UNION RIVER R.R. LOGGING CO., 147 U.S. 165; LAVALETTE V. UNITED STATES, 1 CT.CLS. 147; JACKSON V. UNITED STATES, 19 CT.CLS. 504; 6 COMP. DEC. 236; 11 ID. 459; 14 ID. 795; 19 ID. 110; 1 COMP. GEN. 548; 2 ID. 5; 14 ID. 734).

ACCORDINGLY, SINCE YOUR LETTER PRESENTS NO NEW MATERIAL EVIDENCE, YOUR REQUEST FOR RECONSIDERATION MUST BE, AND IS, DENIED.