B-144333, JUN. 1, 1961

B-144333: Jun 1, 1961

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TO THE ATTORNEY GENERAL: REFERENCE IS MADE TO YOUR LETTER DATED MAY 3. IN VIEW OF THE ALLEGATIONS SET FORTH IN THE COMPLAINT IT MAY BE THAT THE UNITED STATES ATTORNEY WILL WISH TO MOVE THE COURT TO REQUIRE THE PLAINTIFF TO MAKE HIS COMPLAINT MORE DEFINITE AND CERTAIN. THE CLAIM SET FORTH IN THE PRIOR ACTION IS THE SAME AS THAT INVOLVED IN THE PENDING ACTION. IT WILL BE SEEN FROM THE SETTLEMENT THAT THE DISALLOWANCE WAS BASED UPON THE FACT THAT THERE WAS NO CONTRACT WITH THE PLAINTIFF UNDER WHICH THE UNITED STATES BECAME OBLIGATED TO MAKE PAYMENT FOR THE LABOR AND MATERIALS ALLEGEDLY FURNISHED THE DEPARTMENT OF THE ARMY. THE MATTER WAS INFORMALLY DISCUSSED WITH YOUR MR. CLARK AND HE REQUESTED THAT OUR REPORT HEREIN BE FULLY DOCUMENTED IN ORDER THAT THE UNITED STATES ATTORNEY WILL BE IN POSSESSION OF ALL THE FACTS AND THUS BE IN A POSITION TO DEFEND THE PENDING ACTION.

B-144333, JUN. 1, 1961

TO THE ATTORNEY GENERAL:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 3, 1961, REQUESTING A REPORT ON THE COMPLAINT FILED APRIL 26, 1961, IN THE ABOVE ENTITLED ACTION WHEREIN THE PLAINTIFF SEEKS RECOVERY OF THE SUM OF $1,845.45, PLUS INTEREST AMOUNTING TO $332.16, REPRESENTING AN AMOUNT ALLEGED TO BE DUE FOR LABOR AND MATERIALS FURNISHED BY THE PLAINTIFF FOR THE CAPEHART SITE HOUSING PROJECT, ANSONIA, CONNECTICUT, IN JUNE OF 1958 FOR THE DEPARTMENT OF THE ARMY.

IN VIEW OF THE ALLEGATIONS SET FORTH IN THE COMPLAINT IT MAY BE THAT THE UNITED STATES ATTORNEY WILL WISH TO MOVE THE COURT TO REQUIRE THE PLAINTIFF TO MAKE HIS COMPLAINT MORE DEFINITE AND CERTAIN. WE SAY THIS BECAUSE THE MERE ASSERTION BY THE PLAINTIFF THAT HE FURNISHED LABOR AND MATERIALS FOR THE DEPARTMENT OF THE ARMY WOULD APPEAR TO BE INSUFFICIENT TO SUPPORT A CLAIM AGAINST THE UNITED STATES IN THE ABSENCE OF A CONTRACT OBLIGATING THE UNITED STATES TO MAKE PAYMENT THEREFOR.

OUR RECORDS SHOW THAT UNDER DATE OF OCTOBER 15, 1960, THE PLAINTIFF HEREIN FILED AN ACTION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT, CIVIL ACTION NO. 8512, SEEKING RECOVERY FROM THE UNITED STATES, THE AMERICAN MERCURY INSURANCE COMPANY, AND CORNWALL AND KENNEDY, INC., AGENT OF THE INSURANCE COMPANY, OF THE SUM OF $1,845.45, PLUS INTEREST, FOR LABOR AND MATERIALS ALLEGEDLY FURNISHED THE DEPARTMENT OF THE ARMY FOR THE SAME PROJECT REFERRED TO IN THE INSTANT ACTION. OTHER WORDS, THE CLAIM SET FORTH IN THE PRIOR ACTION IS THE SAME AS THAT INVOLVED IN THE PENDING ACTION. BY YOUR LETTER OF APRIL 18, 1961, YOU REPORTED THAT THE GOVERNMENT'S MOTION TO DISMISS CIVIL ACTION NO. 8512 HAD BEEN GRANTED; ALSO, THAT THE PLAINTIFF HAD FILED A NOTICE OF VOLUNTARY DISMISSAL OF HIS SUIT.

UNDER DATE OF NOVEMBER 25, 1960, WE SUBMITTED A REPORT ON THE COMPLAINT FILED IN THE PRIOR CASE, THERE BEING ENCLOSED THEREWITH COPIES OF THE SETTLEMENT DATED AUGUST 26, 1960, BY WHICH OUR CLAIMS DIVISION DISALLOWED THE PLAINTIFF'S CLAIM, TOGETHER WITH COPIES OF RELEVANT DOCUMENTS ON FILE HERE. IT WILL BE SEEN FROM THE SETTLEMENT THAT THE DISALLOWANCE WAS BASED UPON THE FACT THAT THERE WAS NO CONTRACT WITH THE PLAINTIFF UNDER WHICH THE UNITED STATES BECAME OBLIGATED TO MAKE PAYMENT FOR THE LABOR AND MATERIALS ALLEGEDLY FURNISHED THE DEPARTMENT OF THE ARMY.

THE MATTER WAS INFORMALLY DISCUSSED WITH YOUR MR. W. H. CLARK AND HE REQUESTED THAT OUR REPORT HEREIN BE FULLY DOCUMENTED IN ORDER THAT THE UNITED STATES ATTORNEY WILL BE IN POSSESSION OF ALL THE FACTS AND THUS BE IN A POSITION TO DEFEND THE PENDING ACTION. THERE ARE ENCLOSED TWO COPIES (ONE CERTIFIED) OF WHAT WE CONSIDER TO BE THE PERTINENT RECORDS IN THIS CASE. IT APPEARS UNNECESSARY TO COMMENT THEREON EXCEPT TO POINT OUT THAT ACCORDING TO THE STATEMENTS MADE BY MAJOR LESTER K. TIBBETTS, ASSISTANT POST ENGINEER, NO BID BY THE PLAINTIFF OR ESTIMATE OF THE COST WAS EVER RECEIVED BY THE GOVERNMENT AND THAT NO CONTRACT WAS EVER ENTERED INTO WITH PLAINTIFF FOR THE SERVICES INVOLVED. ON THE CONTRARY, IT IS ABUNDANTLY CLEAR THAT MAJOR TIBBETTS MADE KNOWN TO THE PARTIES CONCERNED THAT WHILE HE RESERVED THE RIGHT TO APPROVE THE REPAIRS TO BE MADE, THE UNITED STATES WAS WITHOUT OBLIGATION IN THE MATTER AND THAT THE PLAINTIFF SHOULD LOOK TO THE INSURANCE COMPANY FOR PAYMENT.

THERE IS NO RECORD IN THE GENERAL ACCOUNTING OFFICE OF ANY CLAIM, SETOFF, OR OTHER DEMAND WHICH WOULD FURNISH THE BASIS FOR A CROSS ACTION AGAINST THE PLAINTIFF IN THIS CASE.