A-98049, SEPTEMBER 28, 1938, 18 COMP. GEN. 261

A-98049: Sep 28, 1938

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EVEN WERE THERE NOT INVOLVED THE MATTER OF THE CLAIM BEING ONE FOR UNLIQUIDATED DAMAGES AS FOR AN ALLEGED BREACH OF CONTRACT AS TO WHICH IT IS SETTLED THAT NO ADJUSTMENT OR PAYMENT FROM APPROPRIATED FUNDS MAY BE MADE IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR. THE FACTS AND CIRCUMSTANCES CONCERNING THE CLAIM AND THE REASONS WHY IT MAY NOT BE PAID ARE FULLY SET FORTH IN THE SETTLEMENT AND IN REQUESTING RECONSIDERATION OF THE MATTER YOU PRESENT NO NEW OR MATERIAL EVIDENCE WHICH WOULD JUSTIFY A CONCLUSION DIFFERENT FROM THAT HERETOFORE REACHED. ALTHOUGH THE CONTRACT LISTED AN APPROXIMATE QUANTITY IT WAS SPECIFICALLY STATED THAT THE GOVERNMENT WOULD NOT GUARANTEE TO TAKE ANY DEFINITE AMOUNT OF GASOLINE.

A-98049, SEPTEMBER 28, 1938, 18 COMP. GEN. 261

CONTRACTS - ANTICIPATED PROFITS - GOVERNMENT LIABILITY FOR FAILURE TO ORDER WHOLE APPROXIMATE QUANTITY WHERE CONTRACT FOR GASOLINE LISTED AN APPROXIMATE QUANTITY AND SPECIFICALLY STATED THAT THE GOVERNMENT WOULD NOT GUARANTEE TO TAKE ANY DEFINITE AMOUNT, AND THE AGREED PRICE HAS BEEN PAID FOR ALL GASOLINE DELIVERED, NO ADDITIONAL AMOUNT MAY BE PAID AS ANTICIPATED PROFITS ON THE GASOLINE NOT DELIVERED BECAUSE OF THE GOVERNMENT NOT ORDERING THE WHOLE APPROXIMATE QUANTITY, EVEN WERE THERE NOT INVOLVED THE MATTER OF THE CLAIM BEING ONE FOR UNLIQUIDATED DAMAGES AS FOR AN ALLEGED BREACH OF CONTRACT AS TO WHICH IT IS SETTLED THAT NO ADJUSTMENT OR PAYMENT FROM APPROPRIATED FUNDS MAY BE MADE IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR.

ACTING COMPTROLLER GENERAL ELLIOTT TO SEIBERT OIL COMPANY, SEPTEMBER 28, 1938:

YOUR LETTER OF AUGUST 5, 1938, REQUESTS REVIEW OF SETTLEMENT DATED MAY 23, 1938, WHICH DISALLOWED YOUR CLAIM FOR $4,696.23 ASSERTED TO BE DUE UNDER CONTRACT NO. W-631-ENG-300, DATED NOVEMBER 2, 1934, FOR GASOLINE FOR THE WAR DEPARTMENT, UNITED STATES ENGINEER OFFICE, FORT PECK, MONT.

THE FACTS AND CIRCUMSTANCES CONCERNING THE CLAIM AND THE REASONS WHY IT MAY NOT BE PAID ARE FULLY SET FORTH IN THE SETTLEMENT AND IN REQUESTING RECONSIDERATION OF THE MATTER YOU PRESENT NO NEW OR MATERIAL EVIDENCE WHICH WOULD JUSTIFY A CONCLUSION DIFFERENT FROM THAT HERETOFORE REACHED.

ALTHOUGH THE CONTRACT LISTED AN APPROXIMATE QUANTITY IT WAS SPECIFICALLY STATED THAT THE GOVERNMENT WOULD NOT GUARANTEE TO TAKE ANY DEFINITE AMOUNT OF GASOLINE. YOU HAVE BEEN PAID THE AGREED PRICE FOR ALL OF THE GASOLINE DELIVERED AND THERE IS ACCORDINGLY NO RESPONSIBILITY RESTING UPON THE UNITED STATES TO PAY YOU ANTICIPATED PROFITS ON THE GASOLINE NOT DELIVERED BECAUSE OF THE GOVERNMENT NOT ORDERING THE WHOLE APPROXIMATE QUANTITY. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168; WILLARD SUTHERLAND CO. V. UNITED STATES, 262 U.S. 489; AMERICAN COTTON OIL CO. V. KIRK ET L., 68 FED. 791; 16 COMP. GEN. 717, 719.

ASIDE FROM THAT THE CLAIM THUS APPEARS WHOLLY WITHOUT MERIT, IT IS IN FORM FOR UNLIQUIDATED DAMAGES AS FOR AN ALLEGED BREACH OF CONTRACT. IT IS SETTLED THAT SUCH CLAIMS MAY NOT BE ADJUSTED OR PAID UNDER APPROPRIATIONS IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR. WM. CRAMP AND SONS V. UNITED STATES, 216 U.S. 494, 500-501; 14 OP.ATTY.GEN. 24-26; 15 ID. 39; 33 ID. 354-355.

ACCORDINGLY, THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM MUST BE AND HEREBY IS SUSTAINED.