B-141851, SEP. 19, 1963

B-141851: Sep 19, 1963

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REPRESENTING THE VALUE OF SURPLUS GOVERNMENT AIRCRAFT PURCHASED UNDER SALES INVITATION NO. 04-607-S-60-2 WHICH SALE WAS CANCELED BY THE AIR FORCE BEFORE TITLE TO THE AIRCRAFT WAS ACQUIRED BY YOU. WE ARE UNABLE TO CONSIDER THIS CLAIM AT YOUR REQUEST. THE IDENTICAL CLAIM WAS CONSIDERED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS AND DISMISSED (ASBCA 6208). THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT WAS GRANTED. THE GRAVEMEN OF THE CAUSE OF ACTION IS THATPLAINTIFF'S PROPERTY HAS BEEN FORCIBLY TAKEN. IS THAT UNDER THE SPECIFIC PROVISIONS OF THE INVITATION FOR BIDS TITLE TO THE PLANES STILL REMAINED IN THE DEFENDANT AT THE TIME OF THE CANCELLATION. "TITLE TO THE ITEMS OF PROPERTY SOLD HEREUNDER SHALL VEST IN THE PURCHASER AS AND WHEN FULL PAYMENT IS MADE.

B-141851, SEP. 19, 1963

TO SANFORD ESTES AND COMPANY:

YOUR LETTER DATED AUGUST 31, 1963, REQUESTED THAT WE CONSIDER YOUR CLAIM IN THE AMOUNT OF $250,000, REPRESENTING THE VALUE OF SURPLUS GOVERNMENT AIRCRAFT PURCHASED UNDER SALES INVITATION NO. 04-607-S-60-2 WHICH SALE WAS CANCELED BY THE AIR FORCE BEFORE TITLE TO THE AIRCRAFT WAS ACQUIRED BY YOU.

WE ARE UNABLE TO CONSIDER THIS CLAIM AT YOUR REQUEST. THE IDENTICAL CLAIM WAS CONSIDERED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS AND DISMISSED (ASBCA 6208). ON MARCH 7, 1962, YOU FILED SUIT IN THE COURT OF CLAIMS (NO. 73-62) ON THE SAME CLAIM. BY DECISION OF THE COURT ON APRIL 5, 1963, THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT WAS GRANTED. THE COURT HELD, IN PERTINENT PART THAT:

"THE PETITION IN THIS COURT AVOIDS STATING ANY CLAIM FOR BREACH OF CONTRACT. RATHER, THE GRAVEMEN OF THE CAUSE OF ACTION IS THATPLAINTIFF'S PROPERTY HAS BEEN FORCIBLY TAKEN; HE ALLEGES THAT THE PLANES HAD BECOME HIS PROPERTY BEFORE THE CANCELLATION OF THE SALE ON SEPTEMBER 4TH AND THAT THE CANCELLATION CONSTITUTED AN APPROPRIATION OF HIS PROPERTY BY THE GOVERNMENT FOR WHICH HE SHOULD BE PAID. THE SUFFICIENT ANSWER, AS THE DEFENDANT POINTS OUT, IS THAT UNDER THE SPECIFIC PROVISIONS OF THE INVITATION FOR BIDS TITLE TO THE PLANES STILL REMAINED IN THE DEFENDANT AT THE TIME OF THE CANCELLATION, BECAUSE FULL PAYMENT HAD NOT YET BEEN MADE. "TITLE TO THE ITEMS OF PROPERTY SOLD HEREUNDER SHALL VEST IN THE PURCHASER AS AND WHEN FULL PAYMENT IS MADE; " AND IT WAS ONLY AT THAT TIME THAT THE DEFENDANT WAS TO GIVE THE PURCHASER A BILL OF SALE. PLAINTIFF OFFERS NOTHING TO SHOW WHY THESE EXPRESS PROVISIONS SHOULD NOT APPLY IN HIS CASE. ACCORDINGLY, WE MUST HOLD THAT HE NEVER RECEIVED TITLE TO THE PLANES, THEY NEVER BECAME HIS PROPERTY, AND HE NEVER BECAME THEIR OWNER. SINCE THE SOLE CLAIM HE STATES IN HIS PETITION NECESSARILY RESTS ON HIS OWNERSHIP OF THE PLANES AT THE TIME THE SALE WAS CANCELLED, JUDGMENT MUST GO AGAINST HIM.'

THE DEPARTMENT OF JUSTICE HAS ADVISED US THAT A PETITION FOR RECONSIDERATION WAS DENIED IN JUNE 1963 AND THAT YOU HAVE RECENTLY AGAIN REQUESTED RECONSIDERATION OF YOUR CLAIM.

SECTION 2519, 28 U.S.C., PROVIDES THAT "A FINAL JUDGMENT OF THE COURT OF CLAIMS AGAINST ANY PLAINTIFF SHALL FOREVER BAR ANY FURTHER CLAIM, SUIT, OR DEMAND AGAINST THE UNITED STATES ARISING OUT OF THE MATTERS INVOLVED IN THE CASE OR CONTROVERSY.' YOUR CLAIM INVOLVES THE SAME ISSUES WHICH WERE CONSIDERED BY THE COURT OF CLAIMS IN ITS DECISION OF APRIL 5, 1963. THE MATTER IS NOW RES ADJUDICATA AND FURTHER CONSIDERATION OF THE CLAIM BY OUR OFFICE IS BARRED.