B-129724, NOV. 21, 1956

B-129724, NOV. 21, 1956

TO BAUTISTA ICE PLANT:

REFERENCE IS MADE TO A LETTER DATED JULY 20, 1956, FROM DR. PABLO C. GARCIA, ALLEGEDLY THE PRESENT OWNER OF THE BAUTISTA ICE PLANT, TRANSMITTING CERTAIN SWORN STATEMENTS IN SUPPORT OF ITS CLAIM FOR INDEFINITE QUANTITIES OF ICE FURNISHED CERTAIN UNITS OF OUR ARMED FORCES IN THE PHILIPPINES DURING THE MONTHS OF APRIL AND MAY 1945. THE CLAIM WAS DISALLOWED BY OFFICE SETTLEMENT DATED AUGUST 26, 1955, FOR REASONS THEREIN SET FORTH.

IT IS NOTED THAT THE ORIGINAL CLAIM WAS PRESENTED BY LETTER DATED AUGUST 31, 1954, FROM ONE FELISBERTO MUSNI AS "OWNER AND MANAGER" OF THE BAUTISTA ICE PLANT. IN YOUR LETTER OF JULY 20, AND YOUR AFFIDAVIT OF JULY 26, 1956, YOU CLAIM TO BE THE OWNER OF THE ICE PLANT BY VIRTUE OF YOUR HAVING "BOUGHT LATELY THE SHARES THEREIN" FROM THE FORMER OWNERS, MESSRS. FELISBERTO MUSNI AND FIDEL ISIP. HOWEVER, THERE IS NOTHING NOW OF RECORD WHICH WOULD INDICATE THAT YOU SUCCEEDED TO ALL THE RIGHTS AND LIABILITIES OF THE FORMER OWNERS, OR THAT YOU ACQUIRED BY ASSIGNMENT, OR OTHERWISE, THE RIGHT TO PROSECUTE THE FORMER CLAIM OF MR. FELISBERTO MUSNI FOR ICE REPORTEDLY FURNISHED THE ARMY FROM THE BAUTISTA PLANT DURING APRIL AND MAY OF 1945.

IN THE CIRCUMSTANCES, AND SINCE YOU WERE NOT A PARTICIPANT IN THE 1945 NEGOTIATIONS WHICH RESULTED IN THE REOPENING OF THE BAUTISTA ICE PLANT IN APRIL OF THAT YEAR, AND IN THE FURNISHING OF ICE TO UNITS OF OUR ARMED FORCES DURING THE PERIOD STATED, IT WOULD APPEAR THAT THERE EXISTS NO PRIVITY OF CONTRACT BETWEEN YOU AND THE UNITED STATES AND, HENCE, YOUR CLAIM IS NOT COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE.

HOWEVER, EVEN IF YOUR INTEREST IN THIS CLAIM COULD BE ESTABLISHED, THE ADDITIONAL EVIDENCE FURNISHED BY YOU TENDING TO SHOW THAT THERE WAS AN AGREEMENT TO REIMBURSE THE OWNERS FOR THE ICE FURNISHED THE ARMY DURING APRIL AND MAY 1945 IS NOT CONSIDERED SUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS WHICH MUST ATTACH TO THE STATEMENTS OF THE ARMY OFFICERS WHO ACTUALLY PARTICIPATED IN THESE TRANSACTIONS. IN RESPONSE TO AN EXTENSIVE QUESTIONNAIRE WHICH WAS FURNISHED TO AND EXECUTED BY CAPTAIN JULIUS BRIMBERG AND LIEUTENANT WAYLAND J. CAMPBELL, BOTH OF THE OFFICERS REPLIED THAT THEY HAD NO RECOLLECTION OF ANY AGREEMENT, EXPRESS OR IMPLIED, TO REIMBURSE THE OWNERS OF THE BAUTISTA ICE PLANT FOR THE ICE FURNISHED DURING THIS PERIOD. TO THE CONTRARY, BOTH OFFICERS HAVE REPORTED THEIR VERSION OF THE UNDERSTANDING TO BE THAT IN RETURN FOR THE ARMY'S ACTION IN HAVING FURNISHED THE OWNERS WITH A GENERATOR AND OTHER SUPPLIES AND SERVICES REQUISITE TO THE REPAIR AND REOPENING OF THE PLANT, CERTAIN UNITS OF THE ARMY WOULD BECOME ENTITLED TO RECEIVE A PORTION OF THE PLANT'S ICE CAPACITY DURING THE PERIOD OF ITS OPERATION UNDER THE GENERAL DIRECTION OR SUPERVISION OF THE ARMY.

YOU MUST REALIZE, OF COURSE, THAT WE HAVE NO DIRECT OR FIRSTHAND KNOWLEDGE OF THE EXACT CIRCUMSTANCES UNDER WHICH THE ICE PLANT WAS REOPENED AND CERTAIN QUANTITIES OF ICE WERE FURNISHED OUR ARMED FORCES. HOWEVER, CONSIDERING THE CONTRADICTORY NATURE OF THE EVIDENCE FURNISHED UPON THESE POINTS, WE HAVE NO ALTERNATIVE BUT TO RELY UPON THE CORRECTNESS OF THE FACTS REPORTED TO US BY THE RESPONSIBLE GOVERNMENT OFFICERS WHO PARTICIPATED IN THESE TRANSACTIONS. SEE 3 COMP. GEN. 51, 16 ID. 1101; 18 ID. 799.

ACCORDINGLY, YOU ARE ADVISED THAT THE SETTLEMENT OF AUGUST 26, 1955, DENYING THE CLAIM, IS SUSTAINED.