B-130672, MAR. 1, 1957

B-130672: Mar 1, 1957

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TO TED LAMB AND ASSOCIATES: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 29. WAS DISALLOWED FOR THE REASON THAT IT IS CONSIDERED AN AGENT'S FEE OF 15 PERCENT ON PORTIONS OF CONTRACTS WHICH WERE CANCELED. THE CLAIM WAS DISALLOWED FOR THE FURTHER REASON THAT YOU HAD NOT SUBMITTED THE EVIDENCE IN SUPPORT OF YOUR CLAIM. LAMB PERSISTED IN ASKING FOR AN AGENT'S FEE WHICH AMOUNTS TO 15 PERCENT ON THE PORTIONS OF CONTRACTS THAT WERE CANCELLED. WERE MADE WITH HIM VERBALLY BUT NEVER COMPLETED. LAMB HAS BEEN TOLD THAT HE WAS NOT ENTITLED TO ANY AGENT'S FEE * * *. LAMB WAS TOLD. IT IS THE OPINION OF THIS HEADQUARTERS THAT $2160.00 IS AN AGENT'S FEE PER SE THAT MR. LAMB IS TRYING TO COLLECT. THAT YOU WERE REQUESTED BY THE HEADQUARTERS.

B-130672, MAR. 1, 1957

TO TED LAMB AND ASSOCIATES:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 29, 1957, REQUESTING REVIEW OF THE PARTS OF TWO SETTLEMENTS DATED JANUARY 11, 1957, WHICH DISALLOWED $4,760 OF THE AMOUNTS ALLEGED TO BE DUE FOR ADVERTISING SERVICES FURNISHED THE DEPARTMENT OF THE ARMY, ARKANSAS MILITARY DISTRICT, LITTLE ROCK, ARKANSAS.

YOUR CLAIM FOR $2,160, AS SHOWN ON YOUR STATEMENT NO. 73, DATED JULY 14, 1956, WHICH REFERRED TO THE CLAIM AS COMPRISING 360 HOURS AT $6 PER HOUR, WAS DISALLOWED FOR THE REASON THAT IT IS CONSIDERED AN AGENT'S FEE OF 15 PERCENT ON PORTIONS OF CONTRACTS WHICH WERE CANCELED. ALSO, THE CLAIM WAS DISALLOWED FOR THE FURTHER REASON THAT YOU HAD NOT SUBMITTED THE EVIDENCE IN SUPPORT OF YOUR CLAIM, REQUESTED BY THE HEADQUARTERS, ARKANSAS MILITARY DISTRICT, SUCH AS A STATEMENT OF THE WORK ACTUALLY PERFORMED, AND DRAWINGS, LAYOUTS, ETC., IN SUPPORT OF SUCH STATEMENT. IN THIS REGARD THE ADJUTANT, ARKANSAS MILITARY DISTRICT, IN HIS FIFTH INDORSEMENT OF DECEMBER 5, 1956, REPORTED AS FOLLOWS:

"C. MR. LAMB PERSISTED IN ASKING FOR AN AGENT'S FEE WHICH AMOUNTS TO 15 PERCENT ON THE PORTIONS OF CONTRACTS THAT WERE CANCELLED, AND CONTRACTS, HE CLAIMED, WERE MADE WITH HIM VERBALLY BUT NEVER COMPLETED. MR. LAMB HAS BEEN TOLD THAT HE WAS NOT ENTITLED TO ANY AGENT'S FEE * * *. MR. LAMB WAS TOLD, HOWEVER, THAT HE COULD SUBMIT A STATEMENT FOR WORK HE ACTUALLY PERFORMED, AND THAT HE COULD SUBMIT ANY EVIDENCE OF WORK HE PERFORMED, E.G., DRAWINGS, LAYOUTS, ETC., IN WHICH CASE THESE WOULD BE CONSIDERED IN HIS CLAIM FOR PAYMENT. HE HAS NOT SUBMITTED ANY TANGIBLE EVIDENCE FOR THIS ITEM * * *. AN INVENTORY OF CUTS, ZINCS, MATS, ETC. DELIVERED SHOWED THAT THIS HEADQUARTERS HAD PAID FOR THEM IN THE AMOUNT DELIVERED ON PREVIOUS VOUCHERS. IT IS THE OPINION OF THIS HEADQUARTERS THAT $2160.00 IS AN AGENT'S FEE PER SE THAT MR. LAMB IS TRYING TO COLLECT, AND SHOULD NOT BE PAID.'

YOU ADMIT IN YOUR LETTER OF JANUARY 29, 1957, THAT YOU WERE REQUESTED BY THE HEADQUARTERS, ARKANSAS MILITARY DISTRICT, TO FURNISH SUCH EVIDENCE BUT STATE THAT THE GREAT PORTION OF ADVERTISING AGENCY SERVICE AND WORK IS OF A CREATIVE NATURE, AND IT IS OFTEN IMPOSSIBLE TO PRODUCE EVIDENCE OF SUCH WORK. YOU AGAIN ALLEGE THAT THE AMOUNT OF THE CLAIM IS FOR 360 MAN HOURS AT THE STANDARD RATE OF $6 PER HOUR. ALSO, YOU STATE THAT OUR OFFICE HAS NOT PURSUED THIS MATTER FURTHER THAN LOOKING INTO THE DEPARTMENT OF THE ARMY REPORTS AND HAS NOT ASKED YOU FOR EXPLANATIONS ON ANY ITEM DISALLOWED.

IT LONG HAS BEEN THE ESTABLISHED RULE OF OUR OFFICE AND THE COURTS THAT THOSE ASSERTING CLAIMS AGAINST THE UNITED STATES HAVE THE BURDEN OF ESTABLISHING THEIR VALIDITY AND THE ACCOUNTING OFFICERS ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY FOR PAYMENT CLAIMS NOT SO ESTABLISHED. LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291; CHARLES V. UNITED STATES, 19 C.CLS. 316, 319; 18 COMP. GEN. 199; 26 ID. 776, 781.

ACCORDINGLY, SINCE YOU HAVE NOT FURNISHED ANY EVIDENCE IN ADDITION TO THAT WHICH WAS CONSIDERED AS INSUFFICIENT TO SUPPORT YOUR CLAIM, THERE DOES NOT APPEAR ANY BASIS FOR THE ALLOWANCE OF THE AMOUNT CLAIMED.

YOUR CLAIM FOR $2,600, AS SHOWN ON YOUR STATEMENT NO. 71, DATED MARCH 28, 1956, IS FOR THE SECOND HALF OF A 26 WEEK RENTAL CONTRACT FOR THE FILM "TALES OF THE TEXAS RANGERS.' THE RECORD SHOWS THAT PURCHASE ORDER NO. 98 -56, DATED MARCH 26, 1956, WAS ISSUED FOR THE RENTAL OF "26 FIRST RUN FILMS ENTITLED "TALES OF THE TEXAS RANGERS" TO BE SHOWN OVER TV IN THE LITTLE ROCK-PINE BLUFF, ARKANSAS AREA FOR A PERIOD OF 26 CONSECUTIVE WEEKS BEGINNING IN APRIL 1956. THIS FILM IS OF 30-MINUTE DURATION.' PURCHASE ORDER NO. 107-56, DATED APRIL 9, 1956, WAS ENTERED INTO COVERING THE SAME ITEMS AS ABOVE, HOWEVER, THE LANGUAGE OF THE PURCHASE ORDER WAS CHANGED BY DELETION OF THE PHRASE "FOR A PERIOD OF 26 CONSECUTIVE WEEKS BEGINNING IN APRIL 1956.'

YOU STATE IN YOUR LETTER OF JANUARY 29, 1957, THAT AT THE TIME OF THE ISSUANCE OF PURCHASE ORDER NO. 98-56 YOU WERE INFORMED THAT YOU WOULD RECEIVE A SUBSEQUENT PURCHASE ORDER FOR THE SECOND HALF OF THE FILM CONTRACT AND THAT WHEN YOU RECEIVED PURCHASE ORDER NO. 107-56 YOU ASSUMED IT WAS THE PURCHASE ORDER COVERING THE SECOND HALF. YOU DENY THAT YOU WERE ADVISED OF THE CANCELLATION OF PURCHASE ORDER NO. 98 56.

THERE IS OF RECORD A STATEMENT, DATED DECEMBER 5, 1956, IN PART, AS FOLLOWS:

"I, DOROTHY J. MONTGOMERY, CIVILIAN, PURCHASING AND CONTRACTING OFFICER, ARKANSAS MILITARY DISTRICT, SUBMIT THE FOLLOWING STATEMENT IN REGARDS TO PURCHASE ORDER NR. 98-56.

"I WAS INFORMED ON OR ABOUT 20 MARCH 1956 BY CAPT BUNDO, THE PUBLIC INFORMATION OFFICER, ARKANSAS MILITARY DISTRICT, THAT ARRANGEMENTS HAD BEEN MADE FOR THE PURCHASE OF THE TV FILM "TALES OF THE TEXAS RANGERS" THROUGH THE LAMB AGENCY, AND CAPT BUNDO PRESENTED A PURCHASE REQUEST AND COMMITMENT FORM FOR APPROVAL OF 26 FIRST RUN FILMS IN THE AMOUNT OF $2730.00. PURCHASE ORDER 98-56 WAS ISSUED TO COVER 26 FIRST RUN FILMS. AFTER ISSUANCE, IT WAS DETERMINED THE SERVICES AS SET FORTH SHOULD BE REVISED, AND WITH THE CONCURRENCE OF THE PUBLIC INFORMATION OFFICER, PURCHASE ORDER 98-56 WAS CANCELLED AND PURCHASE ORDER NR. 107 56 WAS ISSUED IN LIEU THEREOF.

"IT IS MY RECOLLECTION THAT CAPT BUNDO VOLUNTEERED TO DELIVER THE VENDOR'S COPY (COPY 3) OF THE REVISED PURCHASE ORDER HIMSELF AS HE HAD PREFERRED TO DO WITH MOST OTHER PURCHASE ORDERS. I REQUESTED CAPT BUNDO TO INFORM MR. LAMB TO DESTROY COPY 3 OF PURCHASE ORDER NR. 98-56 WHICH WAS IN THE POSSESSION OF MR. LAMB'S OFFICE AS THAT ORDER HAD BEEN CANCELLED. CAPT BUNDO ASSURED ME THAT HE WOULD SO INFORM AND INSTRUCT THE LAMB AGENCY.

"SOME MONTHS AFTER, CAPT BUNDO RECEIVED A TELEPHONE CALL FROM MR. LAMB REQUESTING DISPOSITION INSTRUCTIONS CONCERNING COPY 3 OF PURCHASE ORDER NR. 98-56. CAPT BUNDO CALLED ME INTO HIS OFFICE, AND WHILE MR. LAMB WAITED ON THE PHONE, I WAS ASKED BY CAPT BUNDO TO REPEAT INSTRUCTIONS I HAD GIVEN HIM IN THE BEGINNING CONCERNING PURCHASE ORDER NR. 98-56, AND CAPT BUNDO AGAIN TOLD MR. LAMB, OVER THE PHONE, THAT HE WAS TO DESTROY THAT COPY, AND REMINDED HIM HE WAS SO INFORMED AT THE TIME PURCHASE ORDER NR. 107-56 WAS DELIVERED TO HIM.

"FROM THE TIME MR. LAMB RECEIVED NOTICE THAT THE GOVERNMENT WAS CANCELLING CERTAIN OTHER PURCHASE ORDERS, HE WAS ASKED TO SUBMIT ALL BILLS HE CONSIDERED AS OUTSTANDING, AND DURING NUMEROUS SUBSEQUENT MEETINGS HE WAS QUESTIONED AS TO OUTSTANDING STATEMENTS IN ORDER FOR HQ ARKANSAS MILITARY DISTRICT TO EFFECT SETTLEMENT, AND NO MENTION WAS EVER MADE OF PURCHASE ORDER NR. 98-56 BY MR. LAMB.

"WHEN IT BECAME GENERALLY KNOWN THAT CAPT BUNDO WAS TO BE TRANSFERRED, ANOTHER TELEPHONE CALL CAME IN TO CAPT BUNDO FROM MR. LAMB REGARDING PURCHASE ORDER NR. 98-56. CAPT BUNDO AGAIN CALLED ME INTO HIS OFFICE, AND AGAIN I REPEATED INSTRUCTIONS AS I HAD PREVIOUSLY GIVEN REGARDING THE CANCELLATION OF PURCHASE ORDER NR. 98-56, AND AGAIN CAPT BUNDO INSTRUCTED MR. LAMB, OVER THE PHONE, AND IN MY PRESENCE, THAT PURCHASE ORDER 98-56 HAD LONG BEEN CANCELLED ON THE BOOKS AT HQ ARKANSAS MILITARY DISTRICT AS WELL AS AT THE FINANCE OFFICE, FORT CHAFFEE; THAT HIS (MR. LAMB-S) COPY 3 (VENDOR'S COPY) WAS TO HAVE BEEN DESTROYED UPON RECEIPT OF PURCHASE ORDER NR. 107-56 AS HE HAD PREVIOUSLY BEEN INSTRUCTED.'

ALSO, THERE IS OF RECORD A STATEMENT DATED MARCH 20, 1956, BY CAPTAIN BUNDO OF THE ARKANSAS MILITARY DISTRICT, AS FOLLOWS:

"THIS STATEMENT IS MADE TO CLARIFY THE CIRCUMSTANCES SURROUNDING THE ISSUANCE OF VENDORS ORDERS NR. 98 AND 107 FROM PURCHASING AND CONTRACTING SECTION, HEADQUARTERS ARKANSAS MILITARY DISTRICT. ON 26 MARCH 1956 VENDORS ORDER NUMBER 98 WAS SENT TO MR. TED LAMB AND ASSOCIATES TO FACILITATE THE PURCHASE OF 26 WEEKS OF FIRST RUN FILM CALLED "TALES OF THE TEXAS RANGERS.' SEVERAL WEEKS LATER, ON APPROXIMATELY 9 APRIL 1956, MISS DOROTHY MONTGOMERY, PURCHASING AND CONTRACTING OFFICER, STATED TO ME THAT THE TERMINOLOGY CONTAINED IN THE FACT OF THE CONTRACT ON VENDORS ORDER NUMBER 98 HAD BEEN CHANGED AND THAT A PURCHASE ORDER WAS BEING ISSUED IN LIEU THEREOF. SHE ASKED THAT I CALL THE LAMB AGENCY AND NOTIFY THEM OF THIS FACT. I RECALL DOING SO ON THE SAME DAY. I DO NOT REMEMBER WHO I TALKED TO AT THE AGENCY, BUT I DID PASS ON THE INFORMATION MISS MONTGOMERY ASKED ME TO.'

OUR OFFICE, HAVING NO FIRST-HAND KNOWLEDGE OF THE FACTS, MUST NECESSARILY RELY ON THE REPORT OF THE ADMINISTRATIVE OFFICE WITH RESPECT TO THE FACTUAL SITUATIONS ARISING UNDER THE CONTRACT. IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF, IT IS THE INVARIABLE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS. THERE IS NOTHING IN THE PRESENT RECORD TO JUSTIFY THE REJECTION OF THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE.

FURTHERMORE, IN CONNECTION WITH THIS PART OF YOUR CLAIM, YOU STATED IN YOUR LETTER OF MAY 7, 1956, TO COLONEL FRANCIS DAUGHERTY OF THE ARKANSAS MILITARY DISTRICT, THAT "WE ARE OBLIGATED TO A 52 WEEK NON CANCELLABLE FILM CONTRACT FOR WHICH WE HAVE RECEIVED ONLY 26 WEEKS OF VENDOR'S ERS.'

THUS, BY YOUR OWN ADMISSION YOU WERE AWARE AS EARLY AS MAY 7, 1956, THAT THE ARKANSAS MILITARY DISTRICT HAD ISSUED PURCHASE ORDERS FOR ONLY 26 WEEKS OF THE FILM AND THAT PURCHASE ORDER NO. 98-56 HAD BEEN CANCELED.