B-148297, APR. 16, 1962

B-148297: Apr 16, 1962

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THERE WAS FORWARDED HERE YOUR REQUEST OF JANUARY 15. THE CONTRACT OUT OF WHICH THIS CLAIM AROSE WAS FOR CUSTODIAL SERVICES IN GERMANY OVER THE PERIOD JULY 1. WERE STATED IN UNITED STATES DOLLARS. THE INVOICE WAS TYPICAL OF ALL OTHER INVOICES UNDER THE CONTRACT IN THAT IT WAS RENDERED IN DOLLARS BUT PAYMENT WAS REQUESTED IN DEUTSCHE MARKS. WHILE PRIOR AND SUBSEQUENT INVOICES WERE PAID IN DEUTSCHE MARKS. THE INVOICE OF FEBRUARY 28 WAS PAID IN DOLLARS. THE SUSPENSION WAS NECESSITATED BY THE GERMAN GOVERNMENT'S REVALUATION. THE DEUTSCHE MARK WAS INCREASED IN VALUE SO THAT THE CONTRACTOR RECEIVED FEWER DEUTSCHE MARKS IN EXCHANGE FOR THE DOLLARS PAID HIM. PREDICATED ON THE RATE OF EXCHANGE IN EFFECT WHEN THE INVOICE WAS SUBMITTED.

B-148297, APR. 16, 1962

TO THE OFFICE OF THE COMPTROLLER OF THE AIR FORCE:

BY LETTER OF FEBRUARY 26, 1962 (AFAAF-5), FROM THE DIRECTORATE OF ACCOUNTING AND FINANCE, OFFICE OF THE COMPTROLLER OF THE AIR FORCE, THERE WAS FORWARDED HERE YOUR REQUEST OF JANUARY 15, 1962 (CAF), FOR OUR DECISION ON THE CLAIM OF H. HILGES, WIESBADEN, GERMANY, UNDER AIR FORCE CONTRACT 61 (546/-953, FOR A LOSS INCIDENT TO REVALUATION OF THE DEUTSCHE MARK.

THE CONTRACT OUT OF WHICH THIS CLAIM AROSE WAS FOR CUSTODIAL SERVICES IN GERMANY OVER THE PERIOD JULY 1, 1960, THROUGH JUNE 30, 1961. UNDER IT THE UNITED STATES GOVERNMENT OBLIGATED ITSELF TO REIMBURSE THE CONTRACTOR FOR SERVICES RENDERED "AT * * * FIXED UNIT PRICES * * *.' PART II--- PRICING, SCHEDULE OF CONTRACT. THE UNIT PRICES, AND TOTAL COSTS, WERE STATED IN UNITED STATES DOLLARS. REGARDING PAYMENTS, THE CONTRACT PROVIDED THAT THE CONTRACTOR "SHALL BE PAID, UPON THE SUBMISSION OF PROPER INVOICES OR VOUCHERS, THE PRICES STIPULATED HEREIN FOR * * * SERVICES RENDERED AND ACCEPTED, LESS DEDUCTIONS * * *.' CLAUSE 4. PAYMENTS, GENERAL PROVISIONS OF CONTRACT. AS POINTED OUT IN THE LETTER OF THE DIRECTORATE OF ACCOUNTING AND FINANCE, THE CONTRACT DOES NOT SPECIFICALLY STIPULATE THE MONEY OF PAYMENT, UNITED STATES DOLLARS OR DEUTSCHE MARKS; NOR THE RATE OF EXCHANGE THAT WOULD BE APPLICABLE SHOULD PAYMENT BE MADE IN DEUTSCHE MARKS. CF. B-145836, JUNE 14, 1961.

ON FEBRUARY 28, 1961, THE CONTRACTOR FORWARDED AN INVOICE IN THE AMOUNT OF $2,870.06 WITH A REQUEST FOR PAYMENT IN DEUTSCHE MARKS. THE INVOICE WAS TYPICAL OF ALL OTHER INVOICES UNDER THE CONTRACT IN THAT IT WAS RENDERED IN DOLLARS BUT PAYMENT WAS REQUESTED IN DEUTSCHE MARKS. THE INVOICE OF FEBRUARY 28 ALSO CONTAINED THE REQUEST THAT "PAYMENT BE MADE WITHIN 10 DAYS AFTER RECEIPT LESS 2 PERCENT CASH DISCOUNT.'

WHILE PRIOR AND SUBSEQUENT INVOICES WERE PAID IN DEUTSCHE MARKS, THE INVOICE OF FEBRUARY 28 WAS PAID IN DOLLARS, $2,812.66, THE AMOUNT OF THE INVOICE LESS THE 2 PERCENT CASH DISCOUNT, DEUTSCHE MARK TRANSACTIONS HAVING BEEN TEMPORARILY SUSPENDED ON MARCH 6, 1961, THE DAY OF PAYMENT, PURSUANT TO AUTHORITATIVE DIRECTIVES. THE SUSPENSION WAS NECESSITATED BY THE GERMAN GOVERNMENT'S REVALUATION, EFFECTIVE THAT DAY, OF THE DEUTSCHE MARK IN RELATION TO THE UNITED STATES DOLLAR.

THE DEUTSCHE MARK WAS INCREASED IN VALUE SO THAT THE CONTRACTOR RECEIVED FEWER DEUTSCHE MARKS IN EXCHANGE FOR THE DOLLARS PAID HIM. HE CLAIMS AN ADDITIONAL $172.71. HOWEVER, THE TRANSMITTAL LETTER OF THE DIRECTORATE OF ACCOUNTING AND FINANCE STATES THAT AT THE EXCHANGE RATE OF DM 3.99 TO $1, EFFECTIVE MARCH 6, 1961, THE DAY OF PAYMENT, THE UNITED STATES GOVERNMENT PAID THE EQUIVALENT OF DM 11,222.51, AND THE CLAIM, PREDICATED ON THE RATE OF EXCHANGE IN EFFECT WHEN THE INVOICE WAS SUBMITTED, SHOULD BE FORE DM 590.66 OR $148.04.

THE PRICE STRUCTURE OF THE CONTRACT WAS BASED ON THE UNITED STATES DOLLAR. THAT MONEY WAS THE MEASURE OF THE QUANTUM OF THE OBLIGATION OF THE GOVERNMENT. IN THE ABSENCE OF A PROVISION FOR THE PAYMENT OF THE CONTRACTUAL OBLIGATION IN DEUTSCHE MARKS AT A GIVEN RATE OF EXCHANGE, THE FLUCTUATION IN THE VALUE OF THE DEUTSCHE MARK IS NOT A BASIS FOR INCREASING, IN THE EVENT OF A REVALUATION UPWARD, OR OF DECREASING, IN THE EVENT OF REVALUATION DOWNWARD, THE OBLIGATION OF THE GOVERNMENT.

MOREOVER, IN THE LIGHT OF THE CONTRACTUAL PROVISIONS PREVIOUSLY REFERRED TO AND THE ABSENCE OF ANY PROVISION WARRANTING A CONTRARY CONCLUSION, WE ARE OF THE OPINION IT MAY REASONABLY BE INFERRED THAT THE DOLLAR WAS NOT ONLY THE MONEY IN WHICH THE OBLIGATION WAS EXPRESSED, BUT ALSO THE MONEY OF PAYMENT. THAT THE GOVERNMENT HAD THE RIGHT TO DISCHARGE ITS OBLIGATION UNDER THE CONTRACT BY DOLLAR PAYMENTS APPEARS TO HAVE BEEN THE VIEW ENTERTAINED BY THE CONTRACTOR. THE INCLUSION IN ALL INVOICES OF THE CLAUSE "PAYMENT REQUESTED IN DM" IS NOT OTHERWISE UNDERSTANDABLE.

YOU ARE ADVISED THE RECORD BEFORE US DOES NOT DISCLOSE A BASIS FOR FAVORABLE CONSIDERATION OF THE CONTRACTOR'S CLAIM.