B-133613, SEP. 19, 1957

B-133613, SEP. 19, 1957

TO HINTEREGGER AND SOEHN:

REFERENCE IS MADE TO A LETTER DATED AUGUST 21, 1957, FROM ARTHUR B. CARTON, REQUESTING, IN YOUR BEHALF, REVIEW OF SETTLEMENT DATED JUNE 25, 1957, WHICH DISALLOWED YOUR CLAIMS FOR $20,477 AND $34,857.90 ALLEGED TO BE DUE FOR SERVICES AND MATERIAL FURNISHED THE UNITED STATES DEPARTMENT OF THE ARMY UNDER CONTRACTS NOS. DA-91-808-USFA-75 AND DA 91-808-USFA-126.

UNDER THE TERMS OF THE CONTRACTS YOU AGREED TO CONSTRUCT 25 MESS HALLS IN THE SALZBURG SIEZENHEIM AREA FOR THE SUM STIPULATED. THE CONTRACT FORM PROPOSED TO BE UTILIZED PROVIDED THAT PROGRESS PAYMENTS WERE PERMISSIBLE AT THE END OF EACH MONTH OR MORE OFTEN, AS DETERMINED BY THE CONTRACTING OFFICER. DURING THE NEGOTIATIONS YOU AND THE CONTRACTING OFFICER AGREED THAT YOUR INVOICES FOR THE ESTIMATED WORK ACCOMPLISHED MIGHT BE SUBMITTED EVERY TWO WEEKS AND WOULD BE PAID AS SOON AS PRACTICABLE THEREAFTER. CONSIDERATION THEREOF YOU AGREED TO REDUCE THE SUM OF YOUR BID BY FIVE PERCENT. YOU ALLEGE THAT SOME OF THE PAYMENTS UNDER THE CONTRACTS WERE NOT MADE WITHIN TWO WEEKS AFTER THEY WERE PRESENTED FOR PAYMENT AND THAT THE FIVE PERCENT DEDUCTED SHOULD BE REFUNDED TO YOU.

IT APPEARS FROM THE LETTER OF AUGUST 21, 1957, THAT YOUR ATTORNEY, MR. CARTON, IS UNDER THE IMPRESSION THAT THE FILE IN OUR OFFICE RELATIVE TO YOUR CLAIM CONSISTS ONLY OF TWO LETTERS DATED JUNE 26, 1951, AND SEPTEMBER 7, 1951, ADDRESSED TO YOU BY THE CONTRACTING OFFICER. WHILE IT WAS STATED IN THE SETTLEMENT OF JUNE 25, 1957, THAT THE DEPARTMENT OF THE ARMY HAD FURNISHED OUR OFFICE COPIES OF THESE LETTERS, THAT DEPARTMENT ALSO HAS FURNISHED US ITS ENTIRE FILE IN THE MATTER, INCLUDING THE ARMED SERVICES BOARD OF CONTRACT APPEALS REPORTS NOS. 2583 AND 2584. IT WAS STATED IN THE REPORT THAT THE DELAY IN MAKING THE PAYMENTS INVOLVED WAS DUE TO THE FACT THAT YOUR INVOICES WERE NOT "PROPERLY PREPARED UPON FIRST PRESENTATION AND HAD TO BE REWORKED AND VERIFIED BEFORE PAYMENT COULD BE EFFECTED.' THERE HAS BEEN RECEIVED HERE A REPORT DATED AUGUST 7, 1957, FROM THE CONTRACTING OFFICER RELATIVE TO THE ALLEGED DELAYS IN PAYMENT OF YOUR INVOICES, IN PART, AS FOLLOWS:

"* * * ONCE THE INVOICES FOR SERVICES OR SUPPLIES WERE RECEIVED BY MY OFFICE, PROPERLY SIGNED BY THE COR THEY WERE HAND-CARRIED TO THE F AND AN OFFICE AT CAMP TURSCOTT, SALZBURG, AUSTRIA FOR PAYMENT. IN SOME INSTANCES, THE AUSTRIAN CONTRACTORS WERE MET AT THE F AND A OFFICE AND RECEIVED CASH PAYMENT FROM THE DISBURSING OFFICER. I FEEL THAT ONCE THE INVOICE WAS RECEIVED IN PROPER FORM, PAYMENTS WERE MADE WITHIN A 2 WEEKS PERIOD. THERE WAS THE NORMAL DISAGREEMENT BETWEEN THE CONTRACTOR AND COR REGARDING THE QUANTITY OF SUPPLIES OR SERVICES RENDERED BUT, AS I RECALL THERE WERE NOT ANY UNUSUAL DIFFERENCES OF OPINION DURING MY TENURE OF OFFICE AS CONTRACTING OFFICER.'

THUS, THE ADMINISTRATIVE REPORT IS THAT ANY DELAY IN PAYMENT WAS DUE TO IMPROPERLY PREPARED INVOICES. OUR OFFICE, HAVING NO FIRSTHAND KNOWLEDGE OF THE FACTS, MUST NECESSARILY RELY ON THE REPORT OF THE ADMINISTRATIVE OFFICE IN THIS RESPECT. 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 APPLICATION OF A DIFFERENT RULE TO THIS CASE.

IT IS YOUR CONTENTION THAT THE INVOICES WERE NOT PAID WITHIN TWO WEEKS AFTER PRESENTATION. WHILE NOT CONTROLLING IN THIS INSTANCE, ATTENTION IS CALLED TO THE FACT THAT THE AGREEMENT, WITH RESPECT TO THE SUBMISSION OF INVOICES FOR PAYMENT EVERY TWO WEEKS, PROVIDED FOR PAYMENT "AS SOON AS PRACTICABLE.' THE GOVERNMENT DID NOT GUARANTEE PAY WITHIN TWO WEEKS BUT AGREED TO MAKE PAYMENT AS SOON AS PRACTICABLE. WHILE THIS IS TRUE,NEVERTHELESS, AS POINTED OUT ABOVE, ANY DELAY IN THE PAYMENTS THAT MAY HAVE OCCURRED WAS DUE TO IMPROPERLY PREPARED INVOICES.