B-149632, SEP. 5, 1962

B-149632: Sep 5, 1962

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TO MULLEN ELECTRIC COMPANY: REFERENCE IS MADE TO YOUR LETTERS DATED JULY 23 AND AUGUST 7. YOU WERE ADVISED BY THAT COMPANY THAT THE INVOICES SHOULD BE SUBMITTED TO THE GOVERNMENT. THREE INVOICES WERE SUBMITTED AS FOLLOWS: (1) ADDITIONAL WORK BY PARTIAL DESTRUCTION IN CONDUIT AT SITE NO. 17 ORGANIZATIONAL HANGER. THE ADMINISTRATIVE FILE FURTHER SHOWS THAT THE SERVICES FOR WHICH CLAIM IS MADE PERTAINED TO LEASED COMMUNICATION SERVICES AT MINOT AIR FORCE BASE WHICH ARE PROVIDED BY THE SOURIS RIVER TELEPHONE MUTUAL AID CORPORATION UNDER ADMINISTRATIVE FACILITIES CONTRACT NO. THE FILE FURTHER INDICATES THAT YOUR COMPANY WAS A SUBCONTRACTOR OF THE KELLOGG COMPANY IN PROVIDING THE CABLE PLANT (KELLOGG PROJECT 210) AT THE BASE.

B-149632, SEP. 5, 1962

TO MULLEN ELECTRIC COMPANY:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 23 AND AUGUST 7, 1962, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT DATED JULY 17, 1962, WHICH DENIED YOUR CLAIM FOR $2,362.96 ALLEGED TO BE DUE FOR MATERIALS FURNISHED AND WORK PERFORMED FOR THE DEPARTMENT OF THE AIR FORCE, MINOT AIR FORCE BASE, MINOT, NORTH DAKOTA.

THE RECORD SHOWS THAT BY LETTER DATED FEBRUARY 6, 1961, YOU SUBMITTED INVOICES TO MINOT AIR FORCE BASE REQUESTING PAYMENT FOR SERVICES YOU ALLEGEDLY RENDERED TO THE GOVERNMENT AT MINOT AIR FORCE BASE. THE LETTER STATES THAT YOU ORIGINALLY SUBMITTED THE INVOICES TO THE KELLOGG SWITCHBOARD AND SUPPLY COMPANY (NOW ITT KELLOGG) IN DECEMBER OF 1960, BUT YOU WERE ADVISED BY THAT COMPANY THAT THE INVOICES SHOULD BE SUBMITTED TO THE GOVERNMENT. THREE INVOICES WERE SUBMITTED AS FOLLOWS: (1) ADDITIONAL WORK BY PARTIAL DESTRUCTION IN CONDUIT AT SITE NO. 17 ORGANIZATIONAL HANGER--- $475; (2) MATERIALS PURCHASED BY YOU FOR USE ON MINOT AIR FORCE BASE PROJECT TO EXPEDITE CONSTRUCTION--- $1,703.50; AND (3) COST OF REPAIR OF CABLE DAMAGE--- $184.46.

THE ADMINISTRATIVE FILE FURTHER SHOWS THAT THE SERVICES FOR WHICH CLAIM IS MADE PERTAINED TO LEASED COMMUNICATION SERVICES AT MINOT AIR FORCE BASE WHICH ARE PROVIDED BY THE SOURIS RIVER TELEPHONE MUTUAL AID CORPORATION UNDER ADMINISTRATIVE FACILITIES CONTRACT NO. AF 42/600/18584 DATED JANUARY 1, 1957, AND THE VARIOUS COMMUNICATIONS SERVICE AUTHORIZATIONS ISSUED IN CONJUNCTION THEREWITH. IT ALSO APPEARS THAT THE KELLOGG SWITCHBOARD AND SUPPLY COMPANY THROUGH CONTRACTUAL AGREEMENT WITH SOURIS RIVER TELEPHONE MUTUAL AID CORPORATION ACTED AS THE CORPORATION'S AGENT TO ENGINEER, FURNISH AND INSTALL THE REQUIRED COMMUNICATIONS FACILITIES AT MINOT AIR FORCE BASE. THE FILE FURTHER INDICATES THAT YOUR COMPANY WAS A SUBCONTRACTOR OF THE KELLOGG COMPANY IN PROVIDING THE CABLE PLANT (KELLOGG PROJECT 210) AT THE BASE. THERE IS NO INDICATION THAT THE GOVERNMENT HAD ANY CONTRACT WITH OR ANY OBLIGATION TO THE KELLOGG COMPANY.

OUR CLAIMS DIVISION SETTLEMENT OF JULY 17, 1962, IN DENYING YOUR CLAIM POINTED OUT THAT THE FACILITIES CONTRACT ENTERED INTO BETWEEN THE GOVERNMENT AND THE SOURIS RIVER TELEPHONE MUTUAL AID CORPORATION CONFERRED NO RIGHTS UPON YOU OR YOUR PRIME CONTRACTOR (KELLOGG) AGAINST THE GOVERNMENT AND SINCE THERE WAS NO PRIVITY OF CONTRACT BETWEEN YOU AND THE GOVERNMENT, YOUR CLAIM COULD NOT BE RECOGNIZED. IN YOUR LETTER OF JULY 23, 1962, YOU STATE THAT YOUR COMPANY WORKED FOR SOURIS RIVER DIRECTLY AS WELL AS FOR KELLOGG AND DURING THE JOB YOU RECEIVED MONIES FROM BOTH OF THE ABOVE PARTIES. ASSUMING, ARGUENDO, THAT SUCH WAS THE CASE THIS WOULD NOT SUPPLY THE REQUISITE PRIVITY BETWEEN YOUR COMPANY AND THE GOVERNMENT SINCE YOUR POSITION WOULD STILL BE THAT OF SUBCONTRACTOR. THERE IS NO SHOWING, NOR DO YOU ALLEGE, THAT YOUR COMPANY HAS A DIRECT CONTRACTUAL RELATIONSHIP WITH THE GOVERNMENT. IT MUST BE CONCLUDED, THEREFORE, THAT THE PERFORMANCE OF THE WORK UPON WHICH YOUR CLAIM IS BASED CONFERRED NO OBLIGATION UPON THE GOVERNMENT FOR PAYMENT OF SUCH WORK.

ACCORDINGLY, THE CLAIMS DIVISION SETTLEMENT OF JULY 17, 1962, IS CORRECT AND IS SUSTAINED.