B-131924, JUN. 28, 1957

B-131924: Jun 28, 1957

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ATTORNEYS AT LAW: REFERENCE IS MADE TO A LETTER DATED MAY 3. WHEREIN YOU WERE ADVISED THAT THERE IS NO BASIS FOR CONSIDERING YOUR CLAIM FOR $1. THE CONTRACT WAS AWARDED ON MARCH 29. APPROVAL WAS GIVEN TO THE SUBCONTRACTING OF THE REMAINING CONTRACT WORK TO YOU. AT THAT TIME AN UNEXECUTED AND UNAUTHENTICATED COPY OF THE SUBCONTRACTING AGREEMENT WAS FURNISHED THE GOVERNMENT CONTRACTING OFFICER. WAS NEVER INCORPORATED IN THE CONTRACT NOR DID IT CREATE ANY PRIVITY BETWEEN YOU AND THE GOVERNMENT. THIS WAS ACCOMPLISHED AFTER CONSIDERABLE PROTEST BY YOU AND YOUR ATTORNEY ON THE GROUNDS THAT A POWER OF ATTORNEY EMBODIED IN THE AGREEMENT BETWEEN YOU AND THE PRIME CONTRACTOR. WERE RECEIVED IN THE FINANCE OFFICE ON MARCH 26.

B-131924, JUN. 28, 1957

TO AUBURN SPORTSWEAR, INC., ATTORNEYS AT LAW:

REFERENCE IS MADE TO A LETTER DATED MAY 3, 1957, FROM KANE, KESSLER AND PROUJANSKY, REQUESTING, IN YOUR BEHALF, RECONSIDERATION OF THE ACTION TAKEN IN OUR LETTER OF APRIL 25, 1957, TO YOU, WHEREIN YOU WERE ADVISED THAT THERE IS NO BASIS FOR CONSIDERING YOUR CLAIM FOR $1,084.16, FOR REFUND OF THE DISCOUNT WITHHELD IN CONNECTION WITH PAYMENTS MADE FOR MATERIAL FURNISHED THE DEPARTMENT OF THE AIR FORCE UNDER CONTRACT NO. AF 33/602/-6315.

THE CONTRACT WAS AWARDED ON MARCH 29, 1955, TO FRUHAUF SOUTHWEST GARMENT COMPANY, INC. BY SUPPLEMENTAL AGREEMENT NO. 2, DATED DECEMBER 28, 1955, APPROVAL WAS GIVEN TO THE SUBCONTRACTING OF THE REMAINING CONTRACT WORK TO YOU. AT THAT TIME AN UNEXECUTED AND UNAUTHENTICATED COPY OF THE SUBCONTRACTING AGREEMENT WAS FURNISHED THE GOVERNMENT CONTRACTING OFFICER. THIS AGREEMENT, HOWEVER, WAS NEVER INCORPORATED IN THE CONTRACT NOR DID IT CREATE ANY PRIVITY BETWEEN YOU AND THE GOVERNMENT. UPON COMPLETION OF THE CONTRACT WORK YOU SUBMITTED VOUCHERS CERTIFIED BY REPRESENTATIVES OF YOUR COMPANY. THE CONTRACTING OFFICER REQUESTED THAT YOU FURNISH A POWER OF ATTORNEY FROM THE PRIME CONTRACTOR AUTHORIZING YOU TO SIGN IN ITS BEHALF. THIS WAS ACCOMPLISHED AFTER CONSIDERABLE PROTEST BY YOU AND YOUR ATTORNEY ON THE GROUNDS THAT A POWER OF ATTORNEY EMBODIED IN THE AGREEMENT BETWEEN YOU AND THE PRIME CONTRACTOR. CERTIFIED INVOICES, TOGETHER WITH THE REQUIRED INSTRUMENT, WERE RECEIVED IN THE FINANCE OFFICE ON MARCH 26, 1956, AND SINCE PAYMENT WAS EFFECTED THAT DAY, THE SPECIFIED DISCOUNT WAS TAKEN.

WHILE IT IS TRUE THAT THE PRIME CONTRACT WAS AMENDED BY SUPPLEMENTAL AGREEMENT NO. 2, WHEREIN THE GOVERNMENT GAVE APPROVAL--- REQUIRED BY ARTICLE 25 OF THE GENERAL CONDITIONS OF THE CONTRACT--- FOR THE PRIME CONTRACTOR TO SUB-CONTRACT THE UNDELIVERED BALANCE OF THE CONTRACT WORK, THE STATUS OF THE FRUHAUF SOUTHWEST GARMENT COMPANY, INC. AS THE PARTY DIRECTLY RESPONSIBLE TO THE GOVERNMENT WAS NOT CHANGED THEREBY, NOR WERE THE RIGHTS AND LIABILITIES OF THE GOVERNMENT SO FAR AS CONCERNS PAYMENTS TO BE MADE THEREUNDER. THIS CONTRACT REMAINED THE CONTROLLING INSTRUMENT DURING THE ENTIRE CONTRACT PERFORMANCE.

IT IS CONTENDED THAT THE AGREEMENT BETWEEN YOU AND THE PRIME CONTRACTOR GAVE YOU THE AUTHORITY TO SUBMIT INVOICES DIRECTLY TO THE GOVERNMENT AND TO RECEIVE PAYMENT THEREON; HOWEVER, SINCE THE GOVERNMENT HAD ONLY AN UNSIGNED COPY OF THE AGREEMENT, IT WAS NOT IN A POSITION TO ACT ON THE BASIS OF SUCH ALLEGED AUTHORITY. IT IS REPORTED THAT THE NECESSITY FOR FURNISHING EVIDENCE OF YOUR AUTHORITY WAS CALLED TO YOUR ATTENTION ON MARCH 5, AND RESPONSIBILITY FOR THE DELAY IN PAYMENT AFTER THAT DATE, AT LEAST, MUST BE CHARGED TO YOU.

ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN IN THE MATTER WAS PROPER AND IS HEREBY AFFIRMED.