B-139707, JUL. 7, 1959

B-139707: Jul 7, 1959

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED MAY 5. THE CONTRACT WAS TERMINATED PURSUANT TO TERMINATION SUPPLEMENTAL AGREEMENT NO. 7. YOU WERE INSTRUCTED TO SHIP THE SURPLUS PROPERTY LISTED ON THE TERMINATION INVENTORY SCHEDULE TO ROME AIR FORCE DEPOT. WHICH WAS PAID YOU ON OCTOBER 27. IT WAS NOT UNTIL DECEMBER 12. YOU STATE THAT THE BILL OF LADING WAS DELAYED UNDULY IN THE MAIL AND WAS NOT RECEIVED BY YOU IN TIME FOR USE IN SHIPPING THE MATERIAL. SHIPMENT WAS MADE OCTOBER 12. YOUR CLAIM FOR THE FREIGHT CHARGES MUST HAVE BEEN KNOWN TO YOU AT THE TIME YOU SIGNED THE SUPPLEMENTAL AGREEMENT ON OCTOBER 19. AS NO EXCEPTION WAS TAKEN IN THE SETTLEMENT IT MUST BE TAKEN AS FINAL. EXCEPT SUCH CLAIMS AS MAY HAVE BEEN SPECIFICALLY EXCEPTED BY THE TERMS OF THE RELEASE.

B-139707, JUL. 7, 1959

TO THE ATLANTIC AND PACIFIC WIRE AND CABLE COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1959, AND PREVIOUS CORRESPONDENCE, REQUESTING REVIEW OF SETTLEMENT DATED APRIL 30, 1959, WHICH DISALLOWED YOUR CLAIM FOR $430.95 REPRESENTING FREIGHT CHARGES ALLEGED TO BE DUE UNDER CONTRACT NO. AF 42/600/-9828, DATED JUNE 27, 1952.

THE CONTRACT WAS TERMINATED PURSUANT TO TERMINATION SUPPLEMENTAL AGREEMENT NO. 7. YOU WERE INSTRUCTED TO SHIP THE SURPLUS PROPERTY LISTED ON THE TERMINATION INVENTORY SCHEDULE TO ROME AIR FORCE DEPOT, ROME, NEW YORK, ON A GOVERNMENT BILL OF LADING. THE RECORDS DISCLOSE THAT ON SEPTEMBER 15, 1954, MR. OBOLER, PRESIDENT OF THE ATLANTIC AND PACIFIC WIRE AND CABLE COMPANY, NC., ACKNOWLEDGED RECEIPT OF THE GOVERNMENT BILL OF LADING. HOWEVER, YOU IGNORED INSTRUCTIONS TO USE THE GOVERNMENT BILL OF LADING AND SHIPPED THE ITEMS ON OCTOBER 12 AND 13, 1954, BY COMMERCIAL BILL OF LADING. ON OCTOBER 19, 1954, YOU AND THE CONTRACTING OFFICER EXECUTED A SUPPLEMENTAL AGREEMENT WHICH PROVIDED FOR PAYMENT OF $28,579 IN TOTAL AND FINAL SETTLEMENT UNDER THE CONTRACT. ON THE SAME DATE YOU WROTE A LETTER TO THE ADMINISTRATIVE OFFICE CONFIRMING THAT YOU HAD ACTUALLY SHIPPED THE MATERIAL AND AGREED TO ACCEPT THE AMOUNT OF $28,579, WHICH WAS PAID YOU ON OCTOBER 27, 1954.

IT WAS NOT UNTIL DECEMBER 12, 1957, THAT YOU CLAIMED THE AMOUNT INVOLVED. YOU STATE THAT THE BILL OF LADING WAS DELAYED UNDULY IN THE MAIL AND WAS NOT RECEIVED BY YOU IN TIME FOR USE IN SHIPPING THE MATERIAL. HOWEVER, MR. OBOLER OF YOUR FIRM ACKNOWLEDGED RECEIPT OF THE GOVERNMENT BILL OF LADING ON SEPTEMBER 15, 1954, AND SHIPMENT WAS MADE OCTOBER 12, 1954. CONSEQUENTLY, YOUR CLAIM FOR THE FREIGHT CHARGES MUST HAVE BEEN KNOWN TO YOU AT THE TIME YOU SIGNED THE SUPPLEMENTAL AGREEMENT ON OCTOBER 19, 1954, ACCEPTING THE PAYMENT OF $28,579 IN TOTAL AND FINAL SETTLEMENT. AS NO EXCEPTION WAS TAKEN IN THE SETTLEMENT IT MUST BE TAKEN AS FINAL. IT HAS BEEN HELD MANY TIMES BY THE COURTS AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THE EXECUTION OF A RELEASE PRECLUDES A CONTRACTOR FROM THEREAFTER PRESENTING ANY CLAIM ARISING OUT OF THE TRANSACTION INVOLVED, EXCEPT SUCH CLAIMS AS MAY HAVE BEEN SPECIFICALLY EXCEPTED BY THE TERMS OF THE RELEASE. SEE UNITED STATES V. WM. CRAMP AND SONS SHIP AND ENGINE BUILDING COMPANY, 206 U.S. 118; C.R. WILSON BODY COMPANY V. UNITED STATES, 59 C.CLS. 611; BE IN V. UNITED STATES, 101 C.CLS. 144; 23 COMP. GEN. 632; 25 ID. 893.

ACCORDINGLY, THE SETTLEMENT OF APRIL 30, 1959, IS SUSTAINED.

WITH REGARD TO YOUR INQUIRY,"WHEN WILL THIS MATTER BE REFERRED TO THE BOARD OF APPEALS," YOU ARE ADVISED THAT DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES ARE BINDING UPON THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT. CONSEQUENTLY, THIS MATTER CANNOT BE REFERRED TO ANY "BOARD OF APPEALS.' 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 COURT OF CLAIMS OF THE UNITED STATES.