B-134938, JAN. 31, 1958

B-134938: Jan 31, 1958

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INC.: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 31. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $79.28. THE FURNITURE WAS FURNISHED AND DELIVERED AND PAYMENT MADE IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. THE CLAIM FOR THE AMOUNT OF A FREIGHT RATE INCREASE OF $79.28 APPLICABLE TO ONE OF THE CONTRACT ITEMS WAS DISALLOWED IN THE SETTLEMENT FOR THE REASON THAT THE CONTRACT CONTAINED NO PROVISION FOR ANY ADJUSTMENT IN THE AGREED PRICE IN THE EVENT OF AN INCREASE OR DECREASE IN FREIGHT RATES. - WHICH WAS SUBSEQUENTLY DONE. IT MAY BE STATED THAT YOUR ACTION IN THE MATTER WAS PURELY A VOLUNTARY ACT ON YOUR PART AND WHILE COMMENDABLE. IS NOT RELEVANT NOR PERTINENT TO THE MATTER IN HAND. UNDER THE CONTRACT THE GOVERNMENT BECAME VESTED WITH CERTAIN RIGHTS AND THE COURTS HAVE HELD THAT ONCE A CONTRACTUAL RIGHT HAS BECOME VESTED IN THE UNITED STATES.

B-134938, JAN. 31, 1958

TO HABITANT SHOPS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 31, 1957, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF DECEMBER 26, 1957, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $79.28, REPRESENTING A FREIGHT RATE INCREASE ON CERTAIN ITEMS OF FURNITURE SHIPPED UNDER CONTRACT NO. GS OCS-14701, DATED JUNE 27, 1957.

UNDER THE TERMS OF THE SUBJECT CONTRACT YOU AGREED TO FURNISH AND DELIVER AT YOUR EXPENSE TO THE DEPARTMENT OF THE ARMY, COLUMBUS GENERAL DEPOT, COLUMBUS, OHIO, SEVEN ITEMS OF FURNITURE FOR THE PRICE OF $78,845.90. THE FURNITURE WAS FURNISHED AND DELIVERED AND PAYMENT MADE IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. THE CLAIM FOR THE AMOUNT OF A FREIGHT RATE INCREASE OF $79.28 APPLICABLE TO ONE OF THE CONTRACT ITEMS WAS DISALLOWED IN THE SETTLEMENT FOR THE REASON THAT THE CONTRACT CONTAINED NO PROVISION FOR ANY ADJUSTMENT IN THE AGREED PRICE IN THE EVENT OF AN INCREASE OR DECREASE IN FREIGHT RATES.

WITH REGARD TO THE STATEMENTS CONTAINED IN YOUR LETTERS THAT YOU MADE A PERSONAL TRIP TO WASHINGTON AND SUGGESTED THAT THE SPECIFICATIONS BE CORRECTED--- WHICH WAS SUBSEQUENTLY DONE--- THEREBY ALLEGEDLY SAVING THE GOVERNMENT A CONSIDERABLE AMOUNT OF MONEY, IT MAY BE STATED THAT YOUR ACTION IN THE MATTER WAS PURELY A VOLUNTARY ACT ON YOUR PART AND WHILE COMMENDABLE, IS NOT RELEVANT NOR PERTINENT TO THE MATTER IN HAND.

UNDER THE CONTRACT THE GOVERNMENT BECAME VESTED WITH CERTAIN RIGHTS AND THE COURTS HAVE HELD THAT ONCE A CONTRACTUAL RIGHT HAS BECOME VESTED IN THE UNITED STATES, AS IN THIS CASE, TO DEMAND PERFORMANCE UNDER A VALID AND OTHERWISE LEGAL CONTRACT FOR A MUTUAL CONSIDERATION THEREIN SPECIFIED, THERE EXISTS NO AUTHORITY IN OUR OFFICE OR IN ANY OTHER EXECUTIVE OR ADMINISTRATIVE AGENCY OF THE GOVERNMENT GRATUITOUSLY TO WAIVE OR SURRENDER SUCH RIGHT. SEE ROYAL INDEMNITY COMPANY V. UNITED STATES, 313 U.S. 289, 294; CHRISTIE V. UNITED STATES, 237 ID. 234; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607; HYGIENIC FIBRE COMPANY V. UNITED STATES, 59 ID. 892.

THE GOVERNMENT HAS RECEIVED IN THE PRESENT CASE THAT WHICH THE CONTRACT PROVIDED IT SHOULD RECEIVE AND HAVING PAID THE AGREED PRICE THEREFORE, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF AN AMOUNT IN ADDITION THERETO. ACCORDINGLY, THE SETTLEMENT OF DECEMBER 26, 1957, DISALLOWING YOUR CLAIM, IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR ADVICE AS TO WHAT FURTHER COURSE OF ACTION YOU MAY PURSUE, YOU ARE ADVISED THAT THE DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES ARE BINDING UPON THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT. HOWEVER, YOUR ATTENTION IS INVITED GENERALLY TO 28 U.S.C. 1346 AND 1491, PERTAINING TO SUITS AGAINST THE UNITED STATES WHICH ARE COGNIZABLE IN THE DISTRICT COURTS AND THE UNITED STATES COURT OF CLAIMS.