A-80177, AUGUST 29, 1938, 18 COMP. GEN. 199

A-80177: Aug 29, 1938

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ALL THE OLD EQUIPMENT WAS NOT MADE AVAILABLE TO CONTRACTOR UNTIL APPROXIMATELY TWO MONTHS LATER THAN CONTEMPLATED. IS PRIMA FACIE UNREASONABLE AND. THE ACCOUNTING OFFICERS NOT BEING REQUIRED TO CERTIFY FOR PAYMENT CLAIMS WHICH APPEAR TO BE EXORBITANT OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT. IT MAY NOT BE ALLOWED IN THE FACE OF DEFINITE ADMINISTRATIVE FINDINGS THAT CHARGE "IS UNREASONABLE" AND THAT IT . " PARTICULARLY AS IT NOW APPEARS THE CLAIM IS IN REALITY FOR AN ASSERTED LOSS BASED ON THAT THE GOVERNMENT BREACHED ITS OBLIGATION TO FURNISH EQUIPMENT ON DATE SPECIFIED. 1938: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION YOUR PROTEST OF SO MUCH OF CERTIFICATE OF SETTLEMENT NO. 0475367 DATED NOVEMBER 27.

A-80177, AUGUST 29, 1938, 18 COMP. GEN. 199

CONTRACTS - EXCHANGES - GOVERNMENT LIABILITY FOR DELAY IN DELIVERY OF OLD EQUIPMENT WHERE CONTRACT FOR REMOVAL OF ELECTRICAL EQUIPMENT AND INSTALLATION OF NEW EQUIPMENT TO BE FURNISHED BY THE GOVERNMENT, PROVIDED FOR CONTRACTOR'S PURCHASE OF THE OLD EQUIPMENT, AND ALL THE OLD EQUIPMENT WAS NOT MADE AVAILABLE TO CONTRACTOR UNTIL APPROXIMATELY TWO MONTHS LATER THAN CONTEMPLATED, CONTRACTOR'S CLAIM, ORIGINALLY SUBMITTED AS FOR RENTAL OF THE OLD EQUIPMENT, IN AN AMOUNT NEARLY TWICE THE TOTAL PURCHASE PRICE IT AGREED TO PAY THE GOVERNMENT THEREFOR, IS PRIMA FACIE UNREASONABLE AND, THE ACCOUNTING OFFICERS NOT BEING REQUIRED TO CERTIFY FOR PAYMENT CLAIMS WHICH APPEAR TO BE EXORBITANT OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT, IT MAY NOT BE ALLOWED IN THE FACE OF DEFINITE ADMINISTRATIVE FINDINGS THAT CHARGE "IS UNREASONABLE" AND THAT IT ,CERTAINLY CANNOT BE JUSTIFIED," PARTICULARLY AS IT NOW APPEARS THE CLAIM IS IN REALITY FOR AN ASSERTED LOSS BASED ON THAT THE GOVERNMENT BREACHED ITS OBLIGATION TO FURNISH EQUIPMENT ON DATE SPECIFIED, IT BEING WELL SETTLED THAT THE GENERAL ACCOUNTING OFFICE MAY NOT ENTERTAIN AND SETTLE CLAIMS FOR UNLIQUIDATED DAMAGES RESULTING FROM BREACH OF CONTRACT BY THE UNITED STATES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE H. S. TITTLE COMPANY, INC., AUGUST 29, 1938:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION YOUR PROTEST OF SO MUCH OF CERTIFICATE OF SETTLEMENT NO. 0475367 DATED NOVEMBER 27, 1937, AS DISALLOWED YOUR CLAIM OF $1,160 FOR RENTAL OF TWO 150 K.W. HYDRO ELECTRIC UNITS FROM SEPTEMBER 21 TO NOVEMBER 18, 1935, IN CONNECTION WITH CONTRACT I-1P-3583 DATED JUNE 11, 1935.

UNDER THE TERMS OF THE ABOVE MENTIONED CONTRACT YOU WERE TO REMOVE THE EXISTING EQUIPMENT FROM THE POWER HOUSE, YELLOWSTONE NATIONAL PARK, MAMMOTH, MONTANA, REMODEL THE POWER HOUSE, AND INSTALL TWO NEW HYDRO ELECTRIC UNITS--- WHICH UNITS WERE TO BE FURNISHED BY THE GOVERNMENT. A PART OF THE CONTRACT (ITEM 2) YOU AGREED TO PURCHASE THE OLD EQUIPMENT, INCLUDING THE OLD HYDRO-ELECTRIC UNITS, FOR $600, THIS SUM TO BE DEDUCTED FROM MONEYS DUE YOU ON THE OTHER ITEMS. THE OLD UNITS THUS PURCHASED WERE TO BE CLOSED DOWN ON THE NIGHT OF SEPTEMBER 20, 1935, AND MADE AVAILABLE TO YOU TO BEGIN REMOVAL THE NEXT DAY; THE AGREEMENT HAVING CONTEMPLATED THAT THE NEW EQUIPMENT WOULD ARRIVE PRIOR TO THAT TIME. IT APPEARS, HOWEVER, THAT THE NEW EQUIPMENT WHICH THE GOVERNMENT WAS TO FURNISH FOR INSTALLATION DID NOT ARRIVE ON TIMEAND IT WAS NOT UNTIL NOVEMBER 18, 1935, THAT IT WAS FINALLY INSTALLED AND MADE READY TO TAKE OVER THE LOAD. THE MEANTIME ALL THE OLD EQUIPMENT WAS NOT MADE AVAILABLE TO YOU FOR REMOVAL.

YOU CLAIM $1,160 AS RENTAL FOR THESE HYDRO-ELECTRIC UNITS DURING THIS PERIOD OF LESS THAN TWO MONTHS, OR NEARLY TWICE THE AMOUNT WHICH YOU AGREED TO PAY THE UNITED STATES FOR THEM. SUCH A CHARGE, WHATEVER ITS NATURE, IS PRIMA FACIE UNREASONABLE. THE SUPERINTENDENT OF THE YELLOWSTONE NATIONAL PARK, WHO APPEARS TO HAVE BEEN THE CONTRACTING OFFICER, FINDS IN THIS CONNECTION THAT A CHARGE OF $1,160 "CERTAINLY CANNOT BE JUSTIFIED.' THE ACTING DIRECTOR OF THE NATIONAL PARK SERVICE SIMILARLY FOUND THAT THIS AMOUNT "IS UNREASONABLE AND * * * SHOULD NOT BE ALLOWED.'

IN THE FACE OF THESE DEFINITE FINDINGS THERE IS NO LEGAL BASIS FOR ALLOWANCE OF THE AMOUNT CLAIMED BY YOU. ACCOUNTING OFFICERS ARE NOT REQUIRED TO CERTIFY FOR PAYMENT CLAIMS WHICH APPEAR TO BE EXORBITANT OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT. AS STATED BY THE COURT OF CLAIMS IN CHARLES V. UNITED STATES, 19 CT.CLS. 316, 319:

WHEN, IN THE COURSE OF THE EXAMINATION OF ACCOUNTS IN THE DEPARTMENTS,SUSPICIONS ARE AROUSED OR DOUBTS ARE ENTERTAINED AS TO THE VALIDITY OF THE DEMANDS OF CLAIMANTS, THE PARTIES MAY BE SENT TO THIS COURT TO PROVE THEIR CASES UNDER THE RULES AND FORMS OF LAW, UPON LEGAL AND COMPETENT EVIDENCE, OR THEIR DEMANDS MAY BE REJECTED ALTOGETHER, LEAVING THE CLAIMANTS TO PROSECUTE THEM HERE UPON THEIR OWN VOLUNTARY PETITIONS, IF THEY SO DESIRE. THAT IS THE MAIN PROTECTION WHICH THE ACCOUNTING OFFICERS CAN SECURE FOR THEMSELVES AND FOR THE GOVERNMENT IN THE CASE OF CLAIMS OF DOUBTFUL VALIDITY IN FACT OR IN LAW. * * *

SEE ALSO LONGWILL V. UNITED STATES, 17 CT.CLS. 288, 291.

FURTHERMORE, YOU STATE IN YOUR LETTER OF DECEMBER 13, 1937, THAT---

* * * THESE PIECES OF APPARATUS HAD BEEN SOLD AND HAD BEEN PROMISED FOR DELIVERY WITHIN TEN DAYS AFTER THE TWENTY-FIRST DAY OF SEPTEMBER 1935, AND BECAUSE WE WERE NOT ABLE TO MAKE THIS DELIVERY WE WERE UNABLE TO DISPOSE OF THE APPARATUS AND FOR THAT REASON, WE SUFFERED A LOSS WHICH THE UNITED STATES GOVERNMENT IS ENTITLED TO PAY.

THUS, WHILE YOUR CLAIM AS ORIGINALLY SUBMITTED IS DESCRIBED AS ONE FOR "RENTAL OF TWO (2) 150 KW HYDRO-ELECTRIC UNITS" IT NOW APPEARS THAT IN SUBSTANTIAL MEASURE IT IS IN REALITY FOR AN ASSERTED LOSS BASED ON THAT THERE WAS A BREACH BY THE GOVERNMENT OF ITS OBLIGATION TO FURNISH THE EQUIPMENT TO YOU ON THE DATE SPECIFIED IN THE AGREEMENT. ITIS WELL SETTLED THAT THIS OFFICE MAY NOT ENTERTAIN AND SETTLE CLAIMS FOR UNLIQUIDATED DAMAGES RESULTING FROM ASSERTED BREACH OF CONTRACT BY THE UNITED STATES. WILLIAM CRAMP AND SONS V. UNITED STATES, 216 U.S. 494; A- 83751 OF JANUARY 25, 1938; 33 OP.ATTY.GEN. 354.

UNDER ALL THE FACTS AND CIRCUMSTANCES OF YOUR CASE, THERE IS NO ALTERNATIVE BUT TO CERTIFY THAT NO BALANCE IS FOUND DUE YOU FROM THE UNITED STATES.