B-147086, SEP. 20, 1961

B-147086, SEP. 20, 1961

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED AUGUST 29, 1961, FROM THE ASSISTANT DEPUTY FOR PROCUREMENT AND PRODUCTION, DEPARTMENT OF THE AIR FORCE, REQUESTING THAT WE CONSIDER SUBMITTING TO THE CONGRESS, UNDER PROVISIONS OF THE ACT OF APRIL 10, 1928, 31 U.S.C. 236, A CLAIM OF THE KINEMAX CORPORATION FOR $9,040.46.

THE CIRCUMSTANCES ARE EXPLAINED AS FOLLOWS:

"UNDER THE AUTHORITY PROVIDED IN 10 U.S.C. 2674 THE DEPARTMENT OF THE AIR FORCE RECEIVED APPROVAL OF THE OFFICE, SECRETARY OF DEFENSE TO CONSTRUCT, AS A MINOR CONSTRUCTION PROJECT, A JET ENGINE TEST CELL AT ANDREWS AIR FORCE BASE, MARYLAND. THE CONTRACT FOR SUCH CONSTRUCTION WAS PAID IN THE AMOUNT OF $199,451.86. SUBSEQUENT TO FINAL CONTRACT PAYMENT BY THE AIR FORCE TO THE KINEMAX CORPORATION, THE CONTRACTOR SUBMITTED FOUR CLAIMS AGAINST THE AIR FORCE. AFTER NEGOTIATION, THE AIR FORCE DETERMINED THAT $9,040.46 REPRESENTED THE VALUE OF THE WORK PERFORMED FOR WHICH THE CLAIM WERE MADE. THE KINEMAX CORPORATION CONCURRED. DETAIL OF THE CONTRACT PAYMENTS, BASIS FOR THE CLAIMS, AND NEGOTIATION OF A FINAL PRICE IS PROVIDED IN THE INCLOSURE.

"THE MINOR CONSTRUCTION AUTHORITY PROVIDED IN 10 U.S.C. 2674 CONTAINS A $200,000 MAXIMUM LIMITATION FOR ANY ONE PROJECT. PAYMENT OF THE CLAIM, IN ADDITION TO WHAT HAS ALREADY BEEN PAID, WOULD EXCEED THE $200,000LIMITATION.

"IT IS THE OPINION OF OUR GENERAL COUNSEL THAT THIS CLAIM CANNOT BE PAID BY THE AIR FORCE UNDER EXISTING AUTHORITY, AND THAT THE ONLY SOURCE OF RELIEF WOULD BE TO UTILIZE THE AUTHORITY OF THE GENERAL ACCOUNTING OFFICE PROVIDED FOR IN 31 U.S.C. 236. THIS PROVISION AUTHORIZES THE COMPTROLLER GENERAL TO SUBMIT MERITORIOUS CLAIMS TO CONGRESS FOR RELIEF IF FUNDS FOR THE SATISFACTION OF SUCH CLAIMS ARE NOT OTHERWISE LEGALLY AVAILABLE.'

IN THE FACE OF THE EXPRESS STATEMENT IN THE AUTHORIZING LAW, THAT "THIS SECTION DOES NOT AUTHORIZE A PROJECT COSTING MORE THAN $200,000," AND ON THE BASIS OF CIRCUMSTANCES WHICH INDICATE ONLY THAT AN EXCESSIVE OBLIGATION HAS BEEN INCURRED, THE PROPRIETY OF THE KINEMAX CORPORATION'S CLAIM FOR COMPENSATION IN EXCESS OF THAT AMOUNT IS DOUBTFUL. IN ANY EVENT, WE ARE RELUCTANT TO SPONSOR SPECIAL LEGISLATION TO SET ASIDE THE STATUTORY RESTRICTION. AS STATED IN 14 COMP. GEN. 324,"THE ACT OF APRIL 10, 1928, SUPRA, WAS NOT INTENDED FOR EMPLOYMENT AS A MEANS TO REVIVE CLAIMS BARRED BY A STATUTORY OR REGULATORY LIMITATION.' HOWEVER, WHILE IT IS ASSUMED THAT DETAILS OF THE TRANSACTION WILL BE BROUGHT TO THE ATTENTION OF THE COMMITTEES ON ARMED SERVICES OF THE SENATE AND HOUSE OF REPRESENTATIVES AS REQUIRED BY THE PROVISIONS OF 10 U.S.C. 2674 (F), WE KNOW OF NO REASON WHY THE CLAIM FOR RELIEF COULD NOT BE PRESENTED DIRECTLY TO THE CONGRESS EITHER BY YOUR DEPARTMENT OR THE CONTRACTOR.