B-118869 March 30, 1954

B-118869 March 30, 1954

Elliott Addressing Machine Company Cambridge, Massachusetts

Gentlemen:

Reference is made to your letter of August 28, 1953, relative to your claim for $10,000, originally presented to the Bureau of the Census, as reimbursement of a portion of the loss, stated to be approximately $30,000, which you incurred in connection with the partial performance of contract No. Coo-7092, dated November 7, 1952. Also, you request the return "as is" of an electric Flexowriter and an Elliott Keyboard electric stencil cutting machine.

Under the terms of the contract you agreed to furnied, on a rental basis, 32 special built stencil cutting machines with electric keyboards and eight model G-FW addressers, for an approximate annual rental of $82,810. Paragraph of the specifications made a part of the agreement stipulated that:

"The obligation of the Government subsequent to July 1, 1953, shall be conditioned upon the passage of an applicable appropriation or authorization for expenditure by Congress from which this expenditure may be made and shall not obligate the United States upon failure of Congress so to act."

The instant contract was procured by the administrative office pursuant to Public Law 495, 66 Stat. 561, which appropriated funds necessary for the preparation of facilities and procedures to complete a business census as contemplated by the act of June 19, 1948, 62 Stat. 478. The former act did not include funds to conduct the taking of the census, or to cover the rental of the involved equipment after June 30, 1953, and, therefore, it was necessary to include in the contract the quoted provisions of paragraph "n" of the specifications. When the Congress failed to appropriate the funds necessary to take the actual census you were so advised by the Bureau of the Census under date of August 3, 1953, and further notified that the subject contract becamse inoperative as of June 30, 1953.

With respect to your claim for $10,000, to defray a part of the expenses which you allege were incurred in the production of the equipment, it is apparent that the contract imposes no obligation upon the United States to reimburse you for such costs. It authorized only the payment of a monthly rental for each unit of equipment delivered to the Bureau of the Cnesus prior to June 30, 1953, pursuant to which you have been paid the sum of $8,180.40. The payment of that amount only, and the expiration of the contract, was strictly in accordance with its terms to which you agreed. Since there is thus no authority to pay you any part of the amount claimed by virtue of the contract or otherwise, your request for reimbursement of $10,000 must be denied. See, generally, Brawley v. United States, 96 U. S. 168; Simpson v. United States, 172 U. S. 372.

In referring the matter to this Office for consideration, the Bureau of the Census suggested that since there are no appropriated funds available otherwise to pay the claim, the matter be considered under the act of April 10, 1928, 45 Stat. 413. That act authorized the Comptroller General of the United States to report to the Congress with his recommendations thereon, claims which in his judgment contain such elements of legal liability or equity as to be deserving of consideration of the Congress. It has been held that the provisions of the act apply only to such cases as may be presented to this Office that from a standpoint of legal liability on the part of the Government or equities in favor of the claimant are deserving of special consideration and which this Office could consider with a view of making allowance but for the lack of any appropriation or law authorizing the payment of such claims. The instant claims obviously does not come within the first condition, and since the Government derived no benefit from the equipment, title to which you retained, except for the use of a portion thereof prior to June 30, 1953, for which proper rental has been paid, I do not find that the said claim has such elements to equity as to warrant its being reported to the Congress for consideration under the act of April 10, 1928, supra.

Regarding the stencil cutter and Flexowriter machine loaned to the Bureau of the Census, the question as to what disposition is to be made of the attachment primarily is for determination by the Bureau of the Census rather than by the General Accounting Office. For that reason it is suggested that you take up the matter with that Bureau, which is being so advised today with respect thereto.

Very truly yours,

Lindsay C. Warren Comptroller General of the United States