B-135482, APR. 10, 1958

B-135482: Apr 10, 1958

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UPON INSTALLATION IT WAS FOUND THAT THE LENS WAS NOT SATISFACTORY AND THAT IT WOULD BE NECESSARY TO EXCHANGE IT FOR A 4 1/4 INCH SIZE. IT IS REPORTED THAT SOME TIME LATER THE 3 3/4 INCH LENS WAS REMOVED FROM THE PROJECTION EQUIPMENT AND A NEW 4 1/4 INCH LENS INSTALLED. THE 3 3/4 INCH LENS WAS TO BE RETURNED TO YOU AND CREDITED AGAINST THE MORE EXPENSIVE 4 1/4 INCH LENS. WHICH YOU ALLEGE WAS NEVER RETURNED TO YOU. - THAT WERE SET FORTH IN OUR SETTLEMENT OF JANUARY 14. YET YOUR REQUEST FOR RECONSIDERATION IS BASED PRIMARILY ON YOUR CONTENTION THAT SINCE THE DEPARTMENT OF THE ARMY HAS FAILED COMPLETELY TO SUPPORT ITS ACTION WITH FACTS AND SINCE EVERY STATEMENT MADE BY YOU IS SUBSTANTIATED BY FACTUAL RECORDS.

B-135482, APR. 10, 1958

TO THE NATIONAL THEATRE SUPPLY COMPANY:

THERE HAS BEEN FORWARDED TO OUR OFFICE FOR APPROPRIATE ACTION YOUR LETTER DATED FEBRUARY 20, 1958, TO THE FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY, WHEREIN YOU REQUEST RECONSIDERATION OF OUR SETTLEMENT DATED JANUARY 14, 1958, WHICH DISALLOWED $130 OF YOUR TOTAL CLAIM FOR $150.24 UNDER DEPARTMENT OF THE ARMY PURCHASE ORDER NO. 10437 PHILA-54-43/31), DATED JUNE 29, 1954.

IT APPEARS THAT IN ACCORDANCE WITH THE REQUIREMENTS OF THE ABOVE PURCHASE ORDER YOU DELIVERED, ON OCTOBER 7, 1954, TO THE NEW SIGNAL LABORATORIES, FORT MONMOUTH, NEW JERSEY, CERTAIN MOTION PICTURE PROJECTION EQUIPMENT, INCLUDING A SPECIFIC TYPE OF 3 3/4 INCH LENS. UPON INSTALLATION IT WAS FOUND THAT THE LENS WAS NOT SATISFACTORY AND THAT IT WOULD BE NECESSARY TO EXCHANGE IT FOR A 4 1/4 INCH SIZE. IT IS REPORTED THAT SOME TIME LATER THE 3 3/4 INCH LENS WAS REMOVED FROM THE PROJECTION EQUIPMENT AND A NEW 4 1/4 INCH LENS INSTALLED. THE 3 3/4 INCH LENS WAS TO BE RETURNED TO YOU AND CREDITED AGAINST THE MORE EXPENSIVE 4 1/4 INCH LENS. IT APPEARS THAT YOUR CLAIM RESULTED BY REASON OF THE FACT THAT IN MAKING SETTLEMENT FOR THE SUBSTITUTED4 1/4 INCH LENS THE DEPARTMENT OF THE ARMY HAS TAKEN CREDIT FOR THE 3 3/4 INCH LENS, WHICH YOU ALLEGE WAS NEVER RETURNED TO YOU.

IT SEEMS FROM YOUR LETTER OF FEBRUARY 20, 1958, THAT WHILE YOU TAKE EXCEPTION TO CERTAIN FACTS--- NONE OF WHICH APPEAR TO BE PARTICULARLY PERTINENT--- THAT WERE SET FORTH IN OUR SETTLEMENT OF JANUARY 14, 1958, AS NOT REFLECTING ACCURATE STATEMENTS OF THE CIRCUMSTANCES THAT ATTENDED THIS MATTER, YET YOUR REQUEST FOR RECONSIDERATION IS BASED PRIMARILY ON YOUR CONTENTION THAT SINCE THE DEPARTMENT OF THE ARMY HAS FAILED COMPLETELY TO SUPPORT ITS ACTION WITH FACTS AND SINCE EVERY STATEMENT MADE BY YOU IS SUBSTANTIATED BY FACTUAL RECORDS, OUR OFFICE SHOULD NOT IMPROPERLY AND ARBITRARILY CLOSE THE RECORDS ON THIS CLAIM.

INSOFAR AS DEFINITE PROOF OF THE POSITIONS TAKEN IN THIS MATTER BY BOTH YOU AND THE DEPARTMENT OF THE ARMY IS CONCERNED, THE RECORD BEFORE OUR OFFICE FAILS TO DISCLOSE, IN ANY FORM, EVIDENCE IN SUPPORT OF THE STATEMENTS MADE IN THE CASE. THE RECORD CONTAINS NOTHING BUT MERE UNSUPPORTED STATEMENTS THROUGHOUT, WHEREIN IT IS YOUR CONTENTION THAT THE 3 3/4 INCH LENS WAS NEVER RETURNED TO YOU BY THE DEPARTMENT OF THE ARMY AND THAT DEPARTMENT COUNTERING WITH THE STATEMENT THAT WHILE A SEARCH OF ITS FILES HAS FAILED TO PRODUCE, AT THIS LATE DATE, A RECEIPT FOR THE 3 3/4 INCH LENS WHICH WAS RETURNED, TWO EMPLOYEES OF THE DEPARTMENT OF THE ARMY CAN ATTEST NOT ONLY TO THE FACT THAT THE LENS WAS DELIVERED, EITHER TO A MR. W. H. COMPTON, WHO YOU STATE WAS YOUR SUBCONTRACTOR'S ENGINEER ON THE SOUND EQUIPMENT, OR TO YOUR OWN ENGINEER, A MR. W. G. NAFASH, BUT THEY ALSO CAN ATTEST THAT A RECEIPT FOR THE RETURNED 3 3/4 INCH LENS WAS IN FACT GIVEN TO AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, HENCE, THERE CLEARLY IS A DIRECT CONFLICT ON WHAT APPEARS TO BE THE SOLE ISSUE IN THE CASE AND WHEN THERE IS A COMPLETE DISAGREEMENT BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE STATED BY A CLAIMANT THERE CAN ONLY BE REITERATED HERE THE PRINCIPLE, AS SET FORTH IN OUR SETTLEMENT ON JANUARY 14, 1958, THAT THE FACTS AS ADMINISTRATIVELY REPORTED MUST, UNDER SUCH CIRCUMSTANCES, BUT ACCEPTED BY OUR OFFICE AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE CORRECTNESS OF SUCH REPORTED FACTS.

THEREFORE, IT IS CLEAR THAT THIS MATTER RESOLVES ITSELF INTO A QUESTION OF A VERY DOUBTFUL NATURE. THIS BEING THE CASE, THERE APPEARS FOR APPLICATION THE PRINCIPLE OF LAW LAID DOWN IN LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291 AND CHARLES V. UNITED STATES, 19 C.CLS. 316, 319, TO THE EFFECT THAT WHERE THERE EXISTS A REASONABLE DOUBT AS TO THE VALIDITY OF A CLAIM AGAINST THE GOVERNMENT, IT HAS BEEN THE ESTABLISHED RULE THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT PROPERLY MAY NOT CERTIFY SUCH A CLAIM FOR PAYMENT.