B-122885, AUG 24, 1955

B-122885, AUG 24, 1955

PRECIS-UNAVAILABLE

WILLIAM J. DUFFY, ATTORNEY AT LAW:

ACKNOWLEDGMENT IS MADE OF YOUR LETTER OF JULY 6, 1955, ENCLOSING POWER OF ATTORNEY EXECUTED JUNE 25, 1955, AUTHORIZING YOU TO REPRESENT THE MARINETTE GLOVE COMPANY, INC., IN THE PROSECUTION OF ITS CLAIMS AGGREGATING APPROXIMATELY $65,000, ASSERTED IN CONNECTION WITH ITS PRIME CONTRACTS NOS. DA 11-009-QM-1798 AND DA 11-009-QM-3780, DATED SEPTEMBER 8 AND NOVEMBER 22, 1950, WITH THE DEPARTMENT OF THE ARMY, AND UNDER ANOTHER ARMY CONTRACT NO. DA 11-990-QM-2593, DATED OCTOBER 4, 1950, AS TO WHICH YOUR CLIENT WAS A SUBCONTRACTOR.

A REFERENCE TO THE DOCUMENTS AND EXHIBITS WHICH ACCOMPANIED YOUR EARLIER COMMUNICATION OF JANUARY 25, 1955, TO THIS OFFICE, DISCLOSES THAT THE INSTANT CLAIMS COVER LOSSES ALLEGEDLY SUSTAINED BY THE MARINETTE GLOVE COMPANY, INC., IN THE PERFORMANCE OF THE WORK COVERED BY THE THREE CONTRACTS REFERRED TO, AND THAT YOUR CLAIMS FOR FINANCIAL RELIEF IN THE AMOUNT STATED ARE PREDICATED UPON THE PROVISIONS OF THE FIRST WAR POWERS ACT, 1941, 55 STAT. 839, AS EXTENDED, 64 STAT. 1257, AUTHORIZING THE HEADS OF THE VARIOUS DEPARTMENTS OR ESTABLISHMENTS OF THE GOVERNMENT THEREIN DESIGNATED TO MAKE, AMEND, OR MODIFY CONTRACTS WITHOUT REGARD TO THE PROVISIONS OF LAW GENERALLY APPLICABLE TO SUCH MATTERS WHENEVER, WITHIN THE DISCRETION OF THE DEPARTMENT HEAD, SUCH ACTION IS DEEMED NECESSARY TO FACILITATE THE WAR EFFORT OR TO FURTHER THE CAUSE OF OUR NATIONAL DEFENSE, AS THE CASE MIGHT BE. AS WAS STATED IN OUR LETTER OF MAY 13, 1955, TO YOU, DISCRETIONARY POWERS CONFERRED BY THE ACT ARE EXCLUSIVE, AND ONCE THEY HAVE BEEN EXERCISED BY PROPERLY CONSTITUTED AUTHORITY, THE DECISION OF THE DEPARTMENT HEAD, OR OF HIS DULY AUTHORIZED REPRESENTATIVE, IS NOT SUBJECT TO REVIEW EITHER BY THIS OFFICE, OR BY THE COURTS. IN THIS CONNECTION, YOUR SPECIFIC ATTENTION IS DIRECTED TO THE CASE OF WALLER V. UNITED STATES, 114 C. CLS. 640, WHEREIN, AT PAGE 655, THE COURT SAID: "CONGRESS AUTHORIZED THE AMENDMENTS OF THESE CONTRACTS WHENEVER THE EXECUTIVE DEPARTMENT OF THE GOVERNMENT WAS OF THE OPINION THAT THEIR AMENDMENT WOULD FACILITATE THE PROSECUTION OF THE WAR; IT DID NOT COMMIT TO THE COURTS THE DETERMINATION OF THIS QUESTION."

THE RECORD AS FURNISHED BY YOU DISCLOSES THAT YOUR PREVIOUS REQUESTS FOR RELIEF UNDER THE EQUITABLE PROVISIONS OF THE SAID ACT WERE DENIED BY BOTH THE QUARTERMASTER GENERAL AND THE ASSISTANT SECRETARY OF THE ARMY IN THEIR RESPECTIVE DECISIONS OF AUGUST 14, 1951, AND OCTOBER 22, 1954, RENDERED PURSUANT TO SPECIFIC AUTHORITY DELEGATED TO THEM BY THE HEAD OF THAT DEPARTMENT. IN VIEW THEREOF, AND CONSIDERING THE RESTRICTIVE CHARACTER OF THE STATUTE, WE DO NOT POSSESS THE AUTHORITY TO DISTURB THEIR DECISIONS IN THE MATTER, NOR COULD WE LEGALLY SUBSTITUTE OUR DECISION FOR THEIRS.

CONCERNING YOUR CLAIM FOR FINANCIAL RELIEF BASED UPON LOSSES ALLEGEDLY SUSTAINED BY YOUR CLIENT WHILE ACTING AS A SUBCONTRACTOR UNDER CONTRACT NO. DA 11-990-QM-2593, WITH THE INDEPENDENT GLOVE COMPANY, CHICAGO, ILLINOIS, IT LONG HAS BEEN RECOGNIZED THAT THERE IS NO PRIVITY OF CONTRACT BETWEEN SUBCONTRACTORS AND THE UNITED STATES, AND HENCE WE CANNOT TAKE JURISDICTION OVER SUCH CLAIM. SEE, IN THIS CONNECTION, UNITED STATES V. BLAIR, 321 U. S. 730, 737; MERRITT V. UNITED STATES, 267 U. S. 338.

ACCORDINGLY, IN THE ABSENCE OF OTHERWISE VALID CLAIMS, PREDICATED STRICTLY UPON LEGAL PRINCIPLES, AND SUBSTANTIATED BY SUCH FACTS OR EVIDENCE AS MIGHT TEND TO ESTABLISH A CLEAR LEGAL LIABILITY UPON THE GOVERNMENT TO MAKE PAYMENT THEREON FROM PUBLIC MONIES APPROPRIATED FOR THAT PURPOSE, WE HAVE NO OTHER ALTERNATIVE BUT TO DENY YOUR CLAIMS BASED SOLELY UPON THE EXCLUSIVE PROVISIONS OF THE STATUTE CITED. SEE 18 COMP. 980.

CONCERNING YOUR REQUEST THAT WE TAKE THE NECESSARY ACTION TO COMPEL THE DEPARTMENT OF THE ARMY TO MAKE AVAILABLE TO YOU ITS OFFICIAL RECORDS PERTAINING TO THESE TRANSACTIONS, YOU ARE ADVISED THAT THE JURISDICTION CONFERRED UPON THE GENERAL ACCOUNTING OFFICE UNDER THE PROVISIONS OF SECTION 236, REVISED STATUTES, 31 U.S.C. 71, TO SETTLE CLAIMS BOTH FOR AND AGAINST THE GOVERNMENT, DOES NOT CARRY WITH IT THE AUTHORITY TO ISSUE SUBPOENAS DUCES TECUM, OR TO EXERCISE A STRICTLY JUDICIAL FUNCTION, SUCH AS YOU HAVE REQUESTED IN THIS INSTANCE.